2020 City, Family, and Juvenile Judges Seminar

Plenary: Recusal (Ethics)

Friday, January 24 · 11:30am-12:30pm 1 hour Ethics

Judge Guy Holdridge 1st Circuit of Appeal

LOUISIANA STATE LAW INSTITUTE CODE OF CIVIL PROCEDURE COMMITTEE

RECUSAL SUBCOMMITTEE

CURRENT LOUISIANA LAW ON RECUSAL

Prepared for the Meeting of the Subcommittee on

August 9, 2019

Baton Rouge, Louisiana

William A. Morvant, Chairman Guy Holdridge, Reporter

Mallory C. Waller, Staff Attorney

LOUISIANA STATE LAW INSTITUTE CODE OF CIVIL PROCEDURE COMMITTEE

RECUSAL SUBCOMMITTEE

Tiffany Gautier Chase

New Orleans

Christina M. Cossich

Belle Chasse

John D. Crigler

St. Joseph

Blake R. David

Lafayette

Karen Eddlemon

Plaquemine

Nakisha Ervin-Knott

New Orleans

Sherman G. Fendler

New Orleans

William R. Forrester, Jr.

New Orleans

Thomas M. Hayes, III

Monroe

S. Maurice Hicks, Jr.

Shreveport

Madeleine Landrieu

New Orleans

Matthew E. Lundy

Lake Charles

Darrel James Papillion

Baton Rouge

Harry J. “Skip” Philips, Jr.

Baton Rouge

Christopher H. Riviere

Thibodaux

Lauren McHugh Rocha

New Orleans

N. Gregory Smith

Baton Rouge

Paul M. Sterbcow

New Orleans

Kelli Terrell Temple

Baton Rouge

John L. Weimer, III

New Orleans

* * * * * * * * * * * *

William A. Morvant, Chairman

Guy Holdridge, Reporter Mallory C. Waller, Staff Attorney

1

PROVISIONS ON RECUSAL FROM THE CODE OF JUDICIAL CONDUCT, CODE OF CIVIL PROCEDURE, AND

CODE OF CRIMINAL PROCEDURE

Code of Judicial Conduct 1 2

CANON 3 3 4

A Judge Shall Perform the Duties of Office Impartially and Diligently 5 6

The judicial duties of a judge take precedence over all other activities. Judicial duties 7 include all the duties of office prescribed by law. In the performance of these duties, the following 8 standards apply: 9 10

* * * 11 12

C. Recusation. A judge should disqualify himself or herself in a proceeding in which the 13 judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a 14 proceeding in which disqualification is required by law or applicable Supreme Court rule. In all 15 other instances, a judge should not recuse himself or herself. 16

2

Code of Civil Procedure 1 2

CHAPTER 3. RECUSATION OF JUDGES 3 4

Article 151. Grounds 5 6

A. A judge of any court, trial or appellate, shall be recused when he: 7 8 (1) Is a witness in the cause; 9 10 (2) Has been employed or consulted as an attorney in the cause or has previously been 11

associated with an attorney during the latter's employment in the cause, and the judge participated 12 in representation in the cause; 13

14 (3) Is the spouse of a party, or of an attorney employed in the cause or the judge's parent, 15

child, or immediate family member is a party or attorney employed in the cause; or 16 17 (4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced 18

toward or against the parties or the parties' attorneys or any witness to such an extent that he would 19 be unable to conduct fair and impartial proceedings. 20

21 B. A judge of any court, trial or appellate, may be recused when he: 22 23 (1) Has been associated with an attorney during the latter's employment in the cause; 24 25 (2) At the time of the hearing of any contested issue in the cause, has continued to employ, 26

to represent him personally, the attorney actually handling the cause (not just a member of that 27 attorney's firm), and in this case the employment shall be disclosed to each party in the cause; 28

29 (3) Has performed a judicial act in the cause in another court; or 30 31 (4) Is related to: a party or the spouse of a party, within the fourth degree; an attorney 32

employed in the cause or the spouse of the attorney, within the second degree; or if the judge's 33 spouse, parent, child, or immediate family member living in the judge's household has a substantial 34 economic interest in the subject matter in controversy sufficient to prevent the judge from 35 conducting fair and impartial proceedings in the cause. 36

37 C. In any cause in which the state, or a political subdivision thereof, or a religious body or 38

corporation is interested, the fact that the judge is a citizen of the state or a resident of the political 39 subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a 40 ground for recusation. 41

3

Article 152. Recusation on court's own motion or by supreme court 1 2

A. A judge may recuse himself, whether a motion for his recusation has been filed by a 3 party or not, in any cause in which a ground for recusation exists. 4

5 B. A district judge may recuse himself in any cause objecting to the candidacy or 6

contesting the election for any office in which the district or jurisdiction of such office lies wholly 7 within the judicial district from which the judge is elected. 8

9 C. On the written application of a district judge, the supreme court may recuse him for any 10

reason which it considers sufficient. 11 12 D. If a judge recuses himself pursuant to this Article, he shall provide in writing the 13

specific grounds under Article 151 for which the recusal is ordered within fifteen days of the 14 rendering of the order of recusal. 15

16 Article 153. Judge may act until recused or motion for recusation filed 17 18

Until a judge has recused himself, or a motion for his recusation has been filed, he has full 19 power and authority to act in the cause. The judge to whom the motion to recuse is assigned shall 20 have full power and authority to act in the cause pending the disposition of the motion to recuse. 21

22 Article 154. Procedure for recusation 23 24

A party desiring to recuse a judge of a district court shall file a written motion therefor 25 assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the 26 party discovers the facts constituting the ground for recusation thereafter, in which event it shall 27 be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for 28 recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to 29 another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing. 30

31 Article 155. Selection of judge to try motion to recuse; court having two or more judges 32 33

A. In a district court having two judges, the judge who is sought to be recused shall have 34 the motion to recuse referred to the other judge of the court for trial of the motion to recuse. 35

36 B. In a district court having more than two judges, the motion to recuse shall be referred 37

to another judge of the district court for trial through the random process of assignment in 38 accordance with the provisions of Code of Civil Procedure Article 253.1. 39

4

Article 156. Same; court having single judge 1 2

When a ground assigned for the recusation of the judge of a district court having a single 3 judge is his interest in the cause, the judge shall appoint a district judge of an adjoining district to 4 try the motion to recuse. When any other ground is assigned for the recusation of such a district 5 judge, he may appoint either a district judge of an adjoining district, or a lawyer domiciled in the 6 judicial district who has the qualifications of a district judge, to try the motion to recuse. 7

8 The order of court appointing the judge ad hoc shall be entered on its minutes, and a 9

certified copy of the order shall be sent to the judge ad hoc. 10 11

Article 157. Judge ad hoc appointed to try cause when judge recused; power of judge ad hoc 12 13

A. After a trial judge recuses himself under the authority of Article 152(A), a judge ad hoc 14 shall be assigned to try the cause in the manner provided by Articles 155 and 156 for the 15 appointment of a judge ad hoc to try the motion to recuse. When a trial judge is recused after a 16 trial of the motion therefor, the case shall be reassigned to a new judge for trial of the cause under 17 the provisions of Code of Civil Procedure Articles 155 and 156. 18

19 B. After a trial judge recuses himself under the authority of Article 152(B) he shall make 20

written application to the supreme court for the appointment of another district judge as judge ad 21 hoc to try the cause. The supreme court shall appoint a judge from a judicial district other than the 22 judicial district of the recused judge as judge ad hoc to try the cause. 23

24 C. The judge ad hoc has the same power and authority to dispose of the cause as the 25

recused judge has in cases in which no ground for recusation exists. 26 27

Article 158. Supreme court appointment of district judge to try cause when judge recused 28 29

In a cause in which the district judge is recused, even when a judge ad hoc has been 30 appointed for the trial of the cause under Article 157, a party may apply to the supreme court for 31 the appointment of another district judge as judge ad hoc to try the cause. If the supreme court 32 deems it in the interest of justice, such appointment shall be made. 33

34 The order of the supreme court appointing a judge ad hoc shall be entered on its 35

minutes. The clerk of the supreme court shall forward two certified copies of the order, one to the 36 judge ad hoc appointed and the other to the clerk of the district court where the cause is pending, 37 for entry in its minutes. 38

39 Article 159. Recusation of supreme court justice 40 41

When a written motion is filed to recuse a justice of the supreme court, he may recuse 42 himself or the motion shall be heard by the other justices of the court. 43

5

When a justice of the supreme court recuses himself, or is recused, the court may (1) have 1 the cause argued before and disposed of by the other justices, or (2) appoint a judge of a district 2 court or a court of appeal having the qualifications of a justice of the supreme court to act for the 3 recused justice in the hearing and disposition of the cause. 4

5 Article 160. Recusation of judge of court of appeal 6 7

When a written motion is filed to recuse a judge of a court of appeal, he may recuse himself 8 or the motion shall be heard by the other judges on the panel to which the cause is assigned, or by 9 all judges of the court, except the judge sought to be recused, sitting en banc. 10

11 When a judge of a court of appeal recuses himself, or is recused, the court may (1) have 12

the cause argued before and disposed of by the other judges of the panel to which it is assigned, or 13 (2) appoint another of its judges, a judge of a district court or a lawyer having the qualifications of 14 a judge of a court of appeal to act for the recused judge in the hearing and disposition of the cause. 15

16 Article 161. Recusation of judge ad hoc 17 18

A judge ad hoc appointed to try a motion to recuse a judge, or appointed to try the cause, 19 may be recused on the grounds and in the manner provided in this Chapter for the recusation of 20 judges. 21 22

* * * 23 24

CHAPTER 3. RECUSATION OF JUDGES; APPOINTMENT 25 OF JUDGES AD HOC 26

27 Article 4861. Recusation of judges 28 29

A parish court or city court judge or justice of the peace may recuse himself or be recused 30 for the same reasons and on the same grounds as provided in Article 151. 31

32 Article 4862. Motion to recuse 33 34

When a motion is made to recuse a parish court or city court judge or a justice of the peace, 35 he shall either recuse himself, or the motion to recuse shall be tried in the manner provided by 36 Article 4863. 37

38 Article 4863. Determination of recusation; appointment of judge ad hoc 39 40

A. In a parish or city court having more than one judge, the motion to recuse shall be tried 41 by another judge of the same court, and, if the judge is recused, the case shall be tried by another 42

6

judge of the same court. The manner in which the judge is selected to try the recusal and, in the 1 event of recusal, to try the case, shall be provided by rule of court. 2

3 B. In all other cases, the motion shall be tried by the district court and, if the judge is 4

recused, the district court shall try the case or shall appoint another judge of a district, parish, or 5 city court to try the case. 6

7 Article 4864. Appointment of judge ad hoc when judge recuses himself 8 9

A. When a judge of a parish or city court recuses himself, he shall appoint another judge 10 of the same parish or city court, if that court has more than one division; otherwise, he shall appoint 11 either a parish or city court judge from an adjoining parish or, as judge-ad-hoc, an attorney 12 domiciled in the parish who has the qualifications of a parish or city court judge. 13

14 B. When a justice of the peace recuses himself, he shall appoint another justice of the 15

peace to try the case. 16 17

Article 4865. Appointment of judge ad hoc in event of temporary inability of parish or city 18 court judge 19

20 When a parish or city court judge is unable to preside due to temporary absence, incapacity, 21

or inability, he may appoint a judge ad hoc, who may be another judge or who may be a lawyer 22 domiciled in the parish who possesses the qualifications of the judge he replaces. Appointment 23 shall be by order, which shall reflect the term of and reasons for the appointment, and which shall 24 be entered into the minutes of the court. 25

26 Article 4866. Power and authority of judge ad hoc 27 28

A judge ad hoc appointed under the provisions of Articles 4861 through 4865 shall have 29 the same power and authority to act on the cases or on the dates to which appointed as the judge 30 whom he replaces would have. 31

7

Code of Criminal Procedure 1 2

TITLE XXII 3 RECUSATION OF JUDGES AND DISTRICT ATTORNEYS 4

CHAPTER 1. RECUSATION OF JUDGES 5 6

Article 671. Grounds for recusation of judge 7 8

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he: 9 10 (1) Is biased, prejudiced, or personally interested in the cause to such an extent that he 11

would be unable to conduct a fair and impartial trial; 12 13 (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, 14

or of the district attorney; or is related to the accused or the party injured, or to the spouse of the 15 accused or party injured, within the fourth degree; or is related to an attorney employed in the 16 cause or to the district attorney, or to the spouse of either, within the second degree; 17

18 (3) Has been employed or consulted as an attorney in the cause, or has been associated 19

with an attorney during the latter's employment in the cause; 20 21 (4) Is a witness in the cause; 22 23 (5) Has performed a judicial act in the case in another court; or 24 25 (6) Would be unable, for any other reason, to conduct a fair and impartial trial. 26 27 B. In any cause in which the state, or a political subdivision thereof, or a religious body is 28

interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, 29 or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation. 30

31 Article 672. Recusation on court's own motion; by supreme court 32 33

A judge may recuse himself, whether a motion for his recusation has been filed by a party 34 or not, in any case in which a ground for recusation exists. 35

36 On the written application of a trial judge, the supreme court may recuse him for any reason 37

that it considers sufficient. 38 39

Article 673. Judge may act until recused 40 41

A judge has full power and authority to act, even though a ground for recusation exists, 42 until he is recused, or a motion for his recusation is filed. The judge to whom the motion to recuse 43

8

is assigned shall have full power and authority to act in the cause pending the disposition of the 1 motion to recuse. 2

3 Article 674. Procedure for recusation of trial judge 4 5

A party desiring to recuse a trial judge shall file a written motion therefor assigning the 6 ground for recusation. The motion shall be filed prior to commencement of the trial unless the 7 party discovers the facts constituting the ground for recusation thereafter, in which event it shall 8 be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid 9 ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the 10 motion for hearing to another judge or to a judge ad hoc, as provided in Article 675. 11

12 Article 675. Selection of judge ad hoc to try motion to recuse 13 14

A. In a court having two judges, the judge who is sought to be recused shall refer the 15 motion to recuse to the other judge of that court. 16

17 B. In a court having more than two judges, the motion to recuse shall be referred to another 18

judge of the court through a random process as provided by the rules of court. 19 20 C. When the ground assigned for the recusation of the judge of a district court having one 21

judge is that he is biased, prejudiced, or personally interested in the cause, the judge shall appoint 22 a district judge of an adjoining district to try the motion to recuse. When any other ground is 23 assigned for the recusation of such a district judge, he may appoint either a district judge of an 24 adjoining district or a lawyer domiciled in the judicial district who has the qualifications of a 25 district judge to try the motion to recuse. In a city court, a separate juvenile court, or a family 26 court, when the court has a single judge, the judge shall refer the motion to recuse to a district 27 judge of his district. 28

29 D. The order of the court appointing a judge ad hoc shall be entered on the minutes of the 30

court, and the clerk of court shall forward a certified copy of the order to the appointed judge ad 31 hoc. The motion to recuse shall be tried promptly in a contradictory hearing in the court in which 32 the case is pending. 33

34 Article 676. Judge ad hoc to try case when judge recused 35 36

A. When a district court judge, or a judge of a separate juvenile court or of a family court, 37 recuses himself, a judge ad hoc shall be assigned to try the case in the manner provided by Article 38 675 for the appointment of a judge ad hoc to try a motion to recuse. When a city court judge of a 39 court having a single judge recuses himself, he shall appoint to try the case either a city court judge 40 from an adjoining parish or a lawyer who is domiciled in the parish and has the qualifications of a 41 city court judge. 42

9

B. When a district court judge or a judge of a separate juvenile court or of a family court 1 is recused after a trial of the motion, the matter shall be reassigned to another judge for trial of the 2 case in accordance with the procedures contained in Code of Criminal Procedure Article 3 675. When a city court judge of a court having a single judge is recused after a trial on the motion, 4 the judge ad hoc who tried the motion to recuse shall appoint to try the case either a city court 5 judge from an adjoining parish or a lawyer who is domiciled in the parish and has the qualifications 6 of a city court judge. 7

8 C. When a city court has two judges, if a judge recuses himself or is recused, the case shall 9

be tried by the other judge of that court. 10 11 D. When a city court has more than two judges, if a judge recuses himself or is recused, 12

the case shall be tried by another judge of that court through a random reassignment process. 13 14 E. The judge ad hoc has the same power and authority to dispose of the case as the recused 15

judge would have. 16 17

Article 677. Supreme court appointment of judge ad hoc 18 19

In a case in which the district judge is recused, even when a judge ad hoc has been 20 appointed for the trial of the case under Article 676, the defendant or the district attorney may 21 apply to the supreme court for the appointment of another district judge as judge ad hoc to try the 22 case. If the supreme court deems it in the interest of justice, it shall make such appointment. 23

24 The order of the supreme court appointing a judge ad hoc shall be entered on its 25

minutes. The clerk of the supreme court shall forward a certified copy of the order to the appointed 26 judge ad hoc, and a certified copy to the clerk of the district court where the case is pending, for 27 entry in its minutes. 28

29 Article 678. Recusation of judge ad hoc 30 31

A judge ad hoc appointed to try a motion to recuse a judge, or appointed to try the case, 32 may be recused on the grounds and in the manner provided in this Chapter for the recusation of 33 judges. 34

35 Article 679. Recusation of an appellate judge and a supreme court justice 36 37

A. When a written motion is filed to recuse a judge of a court of appeal, he may recuse 38 himself or the motion shall be heard by the other judges on the panel to which the cause is assigned, 39 or by all judges of the court, except the judge sought to be recused, sitting en banc. 40

41 B. When a judge of a court of appeal recuses himself or is recused, the court shall appoint 42

another of its judges to act for the recused judge in the hearing and disposition of the case. 43

10

C. When a written motion is filed to recuse a justice of the supreme court, he may recuse 1 himself or the motion shall be heard by the other justices of the court. 2

3 D. When a justice of the supreme court recuses himself, or is recused, the court may have 4

the case argued before and disposed of by the other justices or appoint a judge of a district court 5 or of a court of appeal to sit as a member of the court in the hearing and disposition of the case. 6

7 * * * 8

9 CHAPTER 3. REVIEW OF RECUSATION RULING 10

11 Article 684. Review of recusation ruling 12 13

If a judge or a district attorney is recused over the objection of the state, or if an application 14 by the state for recusation of a judge is denied, the state may apply for a review of the ruling by 15 supervisory writs. The defendant may not appeal prior to sentence from a ruling recusing or 16 refusing to recuse the judge or the district attorney. 17

LOUISIANA STATE LAW INSTITUTE CODE OF CIVIL PROCEDURE COMMITTEE

RECUSAL SUBCOMMITTEE

SELECT LOUISIANA CASES ON RECUSAL

Prepared for the Meeting of the Subcommittee on

August 9, 2019

Baton Rouge, Louisiana

William A. Morvant, Chairman Guy Holdridge, Reporter

Mallory C. Waller, Staff Attorney

LOUISIANA STATE LAW INSTITUTE CODE OF CIVIL PROCEDURE COMMITTEE

RECUSAL SUBCOMMITTEE

Tiffany Gautier Chase

New Orleans

Christina M. Cossich

Belle Chasse

John D. Crigler

St. Joseph

Blake R. David

Lafayette

Karen Eddlemon

Plaquemine

Nakisha Ervin-Knott

New Orleans

Sherman G. Fendler

New Orleans

William R. Forrester, Jr.

New Orleans

Thomas M. Hayes, III

Monroe

S. Maurice Hicks, Jr.

Shreveport

Madeleine Landrieu

New Orleans

Matthew E. Lundy

Lake Charles

Darrel James Papillion

Baton Rouge

Harry J. “Skip” Philips, Jr.

Baton Rouge

Christopher H. Riviere

Thibodaux

Lauren McHugh Rocha

New Orleans

N. Gregory Smith

Baton Rouge

Paul M. Sterbcow

New Orleans

Kelli Terrell Temple

Baton Rouge

John L. Weimer, III

New Orleans

* * * * * * * * * * * *

William A. Morvant, Chairman

Guy Holdridge, Reporter Mallory C. Waller, Staff Attorney

1

SELECT LOUISIANA CASES ON RECUSAL

I. THE PROBLEM 1 2

1. Huntsman Int'l, LLC v. Praxair, Inc., 255 So. 3d 1046 (La. 2018); rehearing denied, 3 260 So. 3d 1207 (La. 2019) 4 5 In a per curiam, the court granted writs, stating: “Considering the unique 6 circumstances presented, it is ordered that the trial judge be recused. The case is remanded 7 to the district court for random re-allotment of the case to another judge.” The reason for 8 recusal was that the judge’s daughter-in-law became a partner in the firm representing the 9 defendant even though she did not work on the case. 10 11 Justice Crichton assigned reasons to the rehearing request, stating: “I would grant 12 and docket this application to examine whether Code of Judicial Conduct Canon 3(C) 13 provides an additional ground for recusal independent from the grounds enumerated in La. 14 Code Civ. P. art. 151. In my view, the original per curiam, which recused a respected 15 member of the judiciary, will lead to confusion in the trial courts as to the proper standard 16 for judicial recusal in Louisiana. 17 18

2. Raborn v. Albea, 255 So. 3d 1045 (La. 2018); reharing denied, 260 So. 3d 1215 (La. 19 2019) 20 21 In a per curiam, the court granted writs, stating: “Considering the unique 22 circumstances presented, it is ordered that the trial judge be recused. The case is remanded 23 to the district court for random re-allotment of the case to another judge.” 24 25 Justice Crichton dissented and assigned reasons, stating: “I dissent from the per 26 curiam ordering the recusal of Judge Kelley in this matter. The recusal motion filed by 27 plaintiff was referred to Judge R. Michael Caldwell, who conducted a thorough evidentiary 28 hearing and correctly concluded there was no basis for the recusal of Judge Kelley. There 29 has been zero evidence of any actual bias or prejudice on the part of Judge Kelley, and the 30 trial court did not err in denying the motion. As this Court has stated consistently: 31 32

Recusation of judges is a serious and important legal procedure....In each possible 33 recusal situation, there is a countervailing consideration which militates in favor of 34 a judge's not recusing himself, or being recused; that is, that the judge has an 35 obligation, part of his sworn duty as a judge to hear and decide cases properly 36 brought before him. He is not at liberty, nor does he have the right, to take himself 37 out of the case and burden another judge with his responsibility without good and 38 legal cause. In re Lemoine, 96-2116 (La. 1/14/97), 686 So.2d 837, 839-40. 39 40

In my view, there is no legal cause to recuse the trial judge in this matter and, accordingly, 41 I dissent from the per curiam.” 42 43

2

3. See also per curiam opinions in: 1 2

a. KT Farm Partnership v. Citizens Progressive Bank, 228 So. 3d 1210 (La. 2017) 3 4 “Considering the unique facts presented in this case, we find the interests of 5 justice warrant the appointment of a judge ad hoc. The specific appointment will 6 be made in a separate order accompanying this opinion. 7 8 In making this appointment, we emphasize that lawyers should not engage 9 in conduct calculated to force the recusal of the assigned trial judge where no 10 grounds for recusal would otherwise exist. Such conduct may raise significant 11 ethical concerns. Similarly, trial judges presented with such conduct should act with 12 restraint and decorum in order to avoid creating an appearance of impropriety.” 13 14

b. In re Harrier Trust, 263 So.3d 884 (La. 2019) 15 16 “Considering the unique facts presented in this case and in the exercise of 17 our plenary authority pursuant to La. Const. Art. V, § 5(A), we find the interests of 18 justice warrant the appointment of a judge ad hoc to preside over this matter. The 19 specific appointment will be made in a separate order accompanying this opinion. 20 Because this appointment renders the recusal issues moot, the applications are 21 denied in all other respects.” 22

23 4. See also Spanish Lake Restoration, L.L.C. v. Shell Oil Co., 2019 WL 1308285 (La. App. 24

1 Cir. 2019); writ denied, 268 So. 3d 304 (La. 2019) 25 26

Supervisory writ denied: “This court lacks subject matter jurisdiction to review the 27 self-recusal of a judge granted pursuant to the Louisiana Code of Judicial Conduct Canon 28 3 C. The Louisiana Supreme Court has exclusive jurisdiction to interpret and enforce the 29 Code of Judicial Conduct.” 30 31 32

II. OTHER CASES OF RECUSAL UNDER CODE OF JUDICIAL CONDUCT 33 CANON 3(C) AND OTHER GROUNDS NOT INCLUDED IN CODE OF CIVIL 34 PROCEDURE ARTICLE 151 35 36

1. Daurbigney v. Liberty Pers. Ins Co., 2019 WL 2051877 (La. App. 3d Cir. 2019) 37 38 Facts: In the race for a seat on the Louisiana Supreme Court, Judge Castle 39 sponsored an ad directed against the Plaintiff’s lawyers for their participation in PAC for 40 Castle’s opponent. Plaintiff filed a motion to recuse Judge Castle stating the grounds 41 articulated in Code of Civil Procedure Article 151(A)(4). The lower court denied the 42 motion to recuse because the plaintiff failed to prove actual bias. 43 44 Holding: Writ granted, reversing the ruling of the trial court and ordering recusal. 45 46

3

Reasoning: The trial court erred in denying recusal because actual, subjective bias 1 is no longer needed to be proven for recusal. Rather, the objective standard applies in such 2 inquires where the question to be considered is whether, objectively speaking, “the risk of 3 bias was too high to be constitutionally tolerable.” (citing Rippo, U.S., 137 S.Ct. 905). In 4 deciding whether the “risk of bias” is too high the court references Code of Judicial 5 Conduct Canons 1, 2, and 3 to make its determination. Due to the importance of an 6 impartial judiciary and its appearance of impartiality, the court “[l]ooking at this case 7 objectively, given the optics, the tone, timing and wording of the ad,” found that it is 8 implausible that any reasonable client under these circumstances could have confidence in 9 the impartiality of the trial judge presiding over their case. For these reasons the court found 10 that recusal was required. 11 12

2. O'Krepki v. O'Krepki, 2017 La. App. LEXIS 1807 (La. App. 5 Cir. 2017) 13 14 Facts: The judge disclosed that she had been employed by one of the parties’ 15 attorneys, Mr. Howard. Months after the initial disclosure, opposing counsel learned of a 16 significant, decades long professional relationship between the judge and Mr. Howard and 17 filed a motion to recuse. 18 19 Holding: The court found that the trial court erred in denying the motion to recuse. 20 21 Reasoning: Recusal is warranted pursuant to the Louisiana Supreme Court’s 22 instruction that “where the circumstantial evidence of bias or prejudice is so overwhelming 23 that no reasonable judge would hear the case, failure of a judge to recuse herself is a 24 violation of the Code of Judicial Conduct as well as the Louisiana Constitution.” (citing In 25 re Cooks, 694 So. 2d 892 (La. 1997)). The evidence of the extensive relationship between 26 the judge and Mr. Howard and the fact that the judge’s initial disclosure was “misleading, 27 inadequate, and misrepresented the nature of the relationship,” amd the court found that 28 the evidence introduced is “so overwhelming that no reasonable judge would hear the 29 case,” and, therefore, recusal under these facts is warranted. Id. 30 31

3. Dussouy v. Dussouy, 220 So. 3d 197 (La. App. 4 Cir. 2017); writ denied, 227 So. 3d 32 835 (La. 2017) 33 34 Facts: The trial judge’s law clerk accepted employment with a law firm 35 representing a party in a matter before the trial judge. 36 37 Holding: The court reversed the trial court’s granting of the motion to recuse. 38 39 Reasoning: Neither Code of Civil Procedure Article 151(A)(4), Canon 3(C) of the 40 Code of Judicial Conduct, or Rule 1.12 of the Rules of Professional Conduct require recusal 41 in this matter. The motion failed present substantial factual basis for a showing of actual 42 bias or prejudice necessary to support the appellant’s claim that the judge “would be unable 43 to conduct fair and impartial proceedings.” Therefore, the appellant failed to satisfy the 44

4

burden of showing that recusal is necessary pursuant to Code of Civil Procedure Article 1 151(A)(4). As with Article 151, a party who challenges a trial judge’s non-compliance with 2 Canon 3(C) has the “burden to prove that a recusal is warranted by presenting evidence of 3 a substantial nature and based on more than conclusory allegations.” Because the appellant 4 failed to present the necessary evidence showing bias or prejudice, recusal is not warranted 5 under Canon 3(C). Rule 1.12 also does not apply in this case and does not require that a 6 judge recuse himself or herself in such a matter. Rather, this Rule only requires that the 7 firm creating the conflict withdraw from representation, which was done here. 8 9

4. Shields Mott, L.L.P. v. Harris Builders, L.L.C., 2017 La. Dist. LEXIS 4830 10 11 Holding: The trial court granted the motion to recuse. 12 13 Reasoning: Under Code of Judicial Conduct Canon 3(C), to avoid any potential 14 bias or prejudice, or any perception thereof, and to ensure the fair and impartial 15 adjudication of this matter, the case was ordered to be referred to another judge. The 16 defendant in the matter was known by the administrative assistant of the court because the 17 defendant and the assistant share the same place of worship. Due to this relationship, the 18 judge’s impartiality might reasonably be questioned, thereby warranting recusal pursuant 19 to Canon 3(C). 20 21

5. Phillips-Berry v. Lenter, 2018 La. Dist. LEXIS 4798 22 23 Holding: The trial court granted the motion to recuse. 24 25 Reasoning: The plaintiff is a family member of the judge. Pursuant to Code of 26 Judicial Conduct Canon 3(C), the case should be referred to another judge of the court. 27 28

6. Henry v. Sullivan, 223 So. 3d 1263 (La. App. 1 Cir. 2017) 29 30 Facts: Judge Amacker voluntarily recused herself to avoid even an appearance of 31 impropriety. Judge Amacker ordered that the case be re-allotted to Division K, presided 32 over by Judge Devereux. Appellant asserts that Judge Amacker erred by directly re-33 allotting the case to Judge Devereux and by refusing to order the case’s random re-34 allotment pursuant to Article 253.1. 35 36 Holding: The appellate court affirmed the ruling of the trial court and found no error 37 in Judge Amacker’s decision to re-allot the case to Judge Devereaux following her 38 voluntary recusal. 39

5

III. CASES WHERE RECUSAL IS ONLY ALLOWED UNDER THE GROUNDS OF 1 CODE OF CIVIL PROCEDURE ARTICLE 151 2 3

1. Gaspard v. Horace Mann Ins. Co., 247 So. 3d 778 (La. App. 3 Cir. 2018); writ denied, 4 252 So. 3d 931 (La. 2018) 5 6 Facts: Plaintiff argues that her attorney’s candidacy for state legislator against the 7 trial judge’s brother in the 1990s caused the trial judge to be biased against her attorney. 8 9 Holding: The trial court denied the motion, and the appellate court affirmed, since 10 the plaintiff did not preserve the issue of recusal of the trial judge in the motion for new 11 trial. 12 13 Reasoning: The motion fails to provide sufficient grounds for recusal provided by 14 Code of Civil Procedure Article 151, and the plaintiff waived the right to urge recusal by 15 failing to comply with Code of Civil Procedure 154. 16 17 The court rejected grounds for recusal under Canon 3(C) citing to Slaughter v. 18 Board of Sup’rs of Southern Univ., which states that Article 151 “do[es] not include a 19 ‘substantial appearance of the possibility of bias’ or even a ‘mere appearance of 20 impropriety’ as causes for removing a judge…” It instead “requires a finding of actual bias 21 or prejudice that is of a substantial nature, and not one based on merely conclusory 22 allegations.” Plaintiff fails to cite to specific evidence warranting recusal under Article 151. 23 Instead, plaintiff cites to events that occurred 20 years ago as objective evidence that the 24 trial judge knew he could not be impartial and gives no references to current events that 25 indicate the trial court is biased or prejudiced. Also, plaintiff knew more than five weeks 26 before trial that her case would be decided by the trial judge yet did not file a motion to 27 recuse the judge before trial. The court cites to Settle v. Bossier Parish Sch. Bd., which held 28 that “a party who fails to file a motion to recuse the judge prior to trial as required by La. 29 Code Civ. P. art. 154, despite having knowledge of the grounds for recusal waives his right 30 to urge recusal.” 93 So. 3d 1284 (La. App. 2 Cir. 2012); writ denied, 92 So. 3d 347 (La. 31 2012). 32 33 The court also stated: “Thus, while we conclude that a court considering a motion 34 to recuse directed at another judge may be informed by the contours of the Code of Judicial 35 Conduct in its analysis of La.Code Civ.P. art. 151(A)(4), the reviewing judge's ultimate 36 inquiry continues to question the existence of bias, prejudice or interest in the cause or 37 outcome under that Article” (citing In re Eleanor Pierce (Marshall) Stevens Living Trust, 38 229 So. 3d 36 (La. App. 3 Cir. 2017); writ denied, 233 So. 3d 613 (La. 2018)). 39 40

2. England v. England, 223 So. 3d 582 (La. App. 4th Cir. 2017) 41 42 Facts: Appellant contends that the trial judge violated Judicial Canon 3(C). 43 Appellant alleges that the judge had ex parte communications with witnesses and other 44

6

professionals relating to the case and allowed these communications to create an unfair 1 bias against her. 2 3 Holding: The trial court denied the motion, and the appellate court affirmed the trial 4 court’s decision. 5 6 Reasoning: Appellant failed to meet the conditions set forth in Code of Civil 7 Procedure Article 151. Even if ex parte communication occurred, the appellant did not 8 present any facts showing that the judge was prejudiced or interested in the case to such an 9 extent that she would be unable to conduct fair and impartial proceedings. The court noted 10 that “[a]t most, the disputed communications may have given the appearance of 11 impropriety, but . . . this is insufficient to mandate recusal under La. Code Civ. P. art. 151.” 12 13

3. Rodock v. Pommier, 225 So. 3d 512 (La. App. 3 Cir. 2017); rehearing denied (2017); 14 writ denied, 221 So. 3d 70 (La. 2017) 15 16 Holding: The trial court denied the motion, and the appellate court affirmed the trial 17 court’s decision. 18 19 Reasoning: The motion fails to state a ground for recusal under Code of Civil 20 Procedure Article 151, in that the allegations set forth are not of the “substantial nature” 21 necessary to require recusal of the trial judge. The trial court found that “the entire matter 22 is based on allegations and that there lacks any factual basis showing that the court was 23 biased or prejudiced toward any party or party’s attorney.” Additionally, all the allegations 24 made emanate from “testimony and evidence set forth in the proceedings” and are not of 25 an “extrajudicial nature,” and are thus insufficient “to merit recusal.” (citing State v. 26 Augman, 864 So.2d 248 (La. App. 1 Cir. 2003), quoting State v. Williams, 601 So.2d 1374 27 (La. 1992)). 28

29 4. In re Eleanor Pierce (Marshall) Stevens Living Trust, 229 So. 3d 36 (La. App. 3d Cir. 30

2017); writ denied, 233 So. 3d 613 (La. 2018) 31 32 Holding: The trial court’s denial of the motion to recuse is affirmed by the appellate 33 court. 34 35 Reasoning: Code of Civil Procedure Article 151 requires “a finding of actual bias 36 or prejudice that is of a substantial nature, and not one based on merely conclusory 37 allegations.” (citing Covington v. McNeese State Univ., 32 So.3d 223 (La. 2010)). Upon 38 hearing, the judge presiding over the matter found that “[t]here was no showing of bias, 39 prejudice or untoward interest in the cause of its outcome, no bias or prejudice toward or 40 against any party to any extent such that [Judge Canaday] would be unable to conduct a 41 fair and impartial proceeding.” As a result, the court found no grounds for recusal under 42 Article 151 as the ex parte communications between the judge and opposing counsel were 43 “inconsequential” in nature and, in some instances, unrelated to the matter before the court. 44

7

5. City of Baton Rouge v. Douglas, 218 So. 3d 158 (La. App. 1st Cir. 2017) 1 2 Holding: Motion to recuse denied. 3 4 Reasoning: Code of Civil Procedure Article 151 requires a finding of actual bias or 5 prejudice, which must be of a substantial nature and based on more than conclusory 6 allegations. Mr. Douglas failed to provide evidence that the trial judge was actually biased 7 or prejudiced against him. 8 9

6. Johnson v. Perry, 2018 WL 2731237 (La. App. 3 Cir. 2018) 10 11 Facts: Appellant cited the trial judge’s prior representation of the defendant’s 12 grandparents in legal matters and the judge’s close friendship with the defendant’s uncle 13 as ground for self-recusal, as these relationships posed “a clear potential for bias” by the 14 trial judge. 15 16 Holding: The appellate court found no error in the trial court’s denial of the motion 17 to recuse without holding a hearing. 18 19 Reasoning: Code of Civil Procedure Article 151 “do[es] not include a ‘substantial 20 appearance of the possibility of bias’ or even a ‘mere appearance of impropriety’ as causes 21 for removing a judge…” (citing Slaughter v. Board of Sup’rs of Southern Univ., 76 So. 3d 22 465 (La. App. 1 Cir. 2011); writ denied, 77 So.3d 970 (La. 2012)). Rather, Article 151 23 requires a finding of “actual bias or prejudice that is of a substantial nature, and not one 24 based on merely conclusory allegations.” (citing Covington v. McNeese State Univ., 32 So. 25 3d 223 (La. 2010). Appellant’s motion to recuse fails to meet this standard. Neither the 26 motion nor his supporting affidavits contain any allegations of bias or prejudice by the trial 27 judge. Instead, the affidavits merely state conclusory allegations that the trial judge’s 28 connections to the defendant’s family members “certainly appears to be improper for him 29 to hear cases involving them.” Accordingly, the court found no error in the denial of the 30 motion. 31 32

a. See also Louviere v. Perry, 2018 WL 2731681 (La. App. 3 Cir. 2018) and 33 Cormier v. Perry, 2018 WL 2731206 (La. App. 3 Cir. 2018) based on the same 34 facts. 35 36

7. State in Interest of N.B., 248 So. 3d 532 (La. App. 2 Cir. 2018); writ denied, 243 So. 3d 37 568 (La. 2018) 38

39 Facts: Appellant claims that during child in need of care proceedings, the trial court 40 was privy to evidence that may not have been relevant or admissible in the termination of 41 parental rights proceedings and, therefore, the trial court should have recused itself from 42 the termination hearing. 43 44

8

Holding: The appellate court found that the trial court did not abuse its discretion 1 when it denied the motion to recuse. 2 3 Reasoning: Appellant failed to state proper grounds for recusal under Code of Civil 4 Procedure Article 151. The appellant’s allegations were found to be speculative and not 5 based on any specific grounds. Grounds for recusal under Article 151 are exclusive and do 6 not include a “substantial appearance of the possibility of bias” or even a “mere appearance 7 of impropriety” as causes for recusal. (citing Slaughter v. Bd. of Sup'rs of S. Univ. & Agr. 8 & Mech. Coll., 76 So. 3d 465 (La. App. 1 Cir. 2011); writ denied, 77 So. 3d 970 (La. 2012). 9 10 11

IV. CRIMINAL CASES WHERE RECUSAL FOR “PROBABILITY OF ACTUAL 12 BIAS” IS CONSIDERED 13 14

1. State v. Daigle, 241 So. 3d 999 (La. 2018) 15 16 Facts: The defendant was charged with murder, and the trial judge had a longtime 17 working relationship and social media relationship with the murder victim’s widow. The 18 trial judge had also taken steps that would have thwarted another judge from considering 19 his recusal. 20 21 Holding: The motion to recuse was granted. 22 23 Reasoning: The record “satisfies both prongs of proof required by the court in 24 LaCaze” and, therefore, the judge must be recused. 239 So. 3d 807 (La. 2018). First, “[t]he 25 Rippo standard clearly requires proof that an appearance of bias gives rise to a ‘probability 26 of actual bias.’” Id. Secondly, “the defendant must prove that the probability of actual bias 27 rises to a level that ‘is too high to be constitutionally tolerable under the circumstances.’” 28 Id. 29 30

2. State v. Kitts, 2019 WL 851177 (La. App. 1 Cir. 2019) 31 32 Facts: Defendant claims that the trial judge and the district attorney involved in the 33 case had the duty to disclose to defense counsel the nature of their relationship. Defendant 34 claims this nondisclosure was a “structural error,” requiring reversal and remand for new 35 trial. 36 37 Holding: The appellate court found no error or abuse of discretion in the trial court’s 38 denial of a new trial. 39 40 Reasoning: The facts of this case did not meet the Rippo test in that the defendant 41 failed to demonstrate that the probability of bias was “too high to be constitutionally 42 tolerable.” 43

44

9

3. State v. LaCaze, 239 So. 3d 807 (La. 2018); cert. denied, 139 S.Ct. 321 (2018) 1 2 Holding: Recusal was denied. 3 4 Reasoning: Defendant failed to show, objectively speaking, that “the probability of 5 actual bias on the part of the judge or decisionmaker [was] too high to be constitutionally 6 tolerable.” See Rippo v. Baker, 137 S.Ct. 905 (2017). 7 8 9

V. CRIMINAL CASES WHERE RECUSAL IS ONLY ALLOWED UNDER THE 10 GROUNDS OF CODE OF CRIMINAL PROCEDURE ARTICLE 671 11 12

1. State v. Bethley, 2018 WL 1704096 (La. App. 1 Cir. 2018); writ denied, 265 So. 3d 768 13 (La. 2019) 14 15 Facts: Defendant filed a motion to recuse on the grounds that the trial court “crossed 16 the line” in deciding to subpoena the defendant’s former attorney and that the defendant’s 17 due process rights to an impartial judge were in jeopardy. The motion also stated that the 18 trial judge should recuse himself because the defendant’s current attorney intended to call 19 the judge to the stand at the hearing on the motion. 20 21 Holding: The motion to recuse was denied. 22 23 Reasoning: By failing to meet the statutory requirements for recusal provided in 24 Code of Criminal Procedure Articles 671 and 674, the defendant failed to demonstrate 25 prejudice or that the trial court’s ruling affected a substantial right. A motion to recuse 26 “must be based on more than mere general conclusory allegations.” Defendant set forth no 27 valid ground for recusation in his motion, but rather simply asserted that the judge was 28 biased and that the defense intended to call the judge as a witness. 29 30

2. State v. Farris, 210 So. 3d 877 (La. App. 2 Cir. 2016); writ denied, 227 So. 3d 828 (La. 31 2017) 32 33 Facts: The trial judge incorrectly stated that an eyewitness identified the defendant 34 at the crime scene. Defendant claims that the judge’s finding of guilt established that the 35 judge was biased. 36 37 Holding: The trial court’s ruling indicates no bias, and the misstatement was a 38 harmless error. 39 40 Reasoning: In order to obtain a recusation on bias, prejudice, and/or personal 41 interest, “the party seeking the recusation must establish grounds of a substantial nature 42 based on more than conclusory allegations.” Code of Criminal Procedure Article 671. The 43

10

defendant “failed to prove that the trial judge was biased,” therefore the assignment of error 1 is without merit. 2 3

3. State in Interest of K.B., 200 So. 3d 933 (La. App. 3 Cir. 2016) 4 5 Holding: The appellate court found no error in the denial of the motion to recuse. 6 7 Reasoning: The motion to recuse did not state a sufficient reason under Code of 8 Criminal Procedure Article 671(A)(1). The only reason given for recusal was that the judge 9 had knowledge of the juvenile defendant, which the judge gained though the juvenile’s 10 time in the court system. This reason is not a sufficient ground for recusal of a judge. 11 12

4. State v. Barker, 2018 WL 2426455 (La. App. 4 Cir. 2018); writ denied, 267 So. 3d 85 13 (La. 2019) 14 15 Holding: The trial court did not err in denying the defendant’s motion for recusal 16 17 Reasoning: Defendant failed to show bias or prejudice of a substantial nature in 18 support of the motion to rebut the presumption of impartiality. (citing State v. Parker, 696 19 So. 2d 599 (La. App. 4 Cir. 1997) and State v. Walton, 469 So.2d 1204 (La. App. 4 Cir. 20 1985)). Defendant’s inclusion of the trial judge as a defendant in his civil action, based 21 solely on the court’s appointment of a public defender that the defendant did not want to 22 accept, without more, is insufficient to overcome the presumption. Additionally, a judge’s 23 improper remarks or the appearance of impropriety during the proceedings are not cause 24 for recusal unless supported by evidence in the record of actual bias, which was not 25 provided by the defendant. (citing In re Succession of Manheim, 859 So.2d 836 (La. App. 26 4 Cir. 2003). 27 28

5. State v. McGill, 213 So. 3d 1181 (La. App. 2 Cir. 2017); writ not considered sub nom. 29 State ex rel. McGill v. State, 219 So. 3d 329 (La. 2017) 30 31 Facts: Defendant filed a motion to recuse on the grounds that he believed there to 32 be a conflict of interest with the judge presiding over the case because the defendant had 33 filed a civil suit in federal court naming the judge as a defendant and had also filed a 34 disciplinary complaint against the judge. After reviewing Code of Criminal Procedure 35 Article 671, the trial judge found that neither the disciplinary complaint nor lawsuit would 36 have any bearing on any ruling he may make in the instant criminal case. 37 38 Holding: The trial court denied the motion, and the appellate court affirmed the trial 39 court’s decision, finding no error. 40 41 Reasoning: Defendant failed to state a specific ground for recusal under Code of 42 Criminal Procedure Article 671. A defendant “must provide specific facts in support of a 43 valid ground for recusal.” Mere “conclusory allegations” will not support a motion to 44

11

recuse. (citing State v. Rollins, 749 So.2d 890 (La. App. 2d Cir. 1999); writ denied, 768 1 So. 2d 1278 (La. 2000), which cited State v. Small, 693 So.2d 180 (La. App. 2d Cir. 1997)). 2 The allegation that a lawsuit had been filed was never substantiated. Further, the defendant 3 failed to state how a suit, if one existed, “would create bias or impartiality” and made 4 “nothing but a conclusory statement” that a disciplinary complaint had been filed. 5

1

LOUISIANA STATE LAW INSTITUTE CODE OF CIVIL PROCEDURE COMMITTEE

RECUSAL SUBCOMMITTEE

M E M O R A N D U M TO: Judge Holdridge; Mallory Waller FROM: Christopher Handy DATE: 4/1/2019 RE: Recusal for appearance of impropriety Background 1 2 Louisiana Code of Civil Procedure art. 151 provides the grounds for recusal of judges. 3 Although article 151 provides that a judge shall be recused if the judge is prejudiced, biased, or 4 otherwise not able to conduct proceedings impartially, the Code does not explicitly require recusal 5 for the appearance of impropriety.1 In contrast, the Code of Judicial Conduct (“CJC”) provides 6 that judges shall avoid the appearance of impropriety in all activities.2 Furthermore, the CJC 7 provides that a judge should recuse himself or herself when “the judge's impartiality might 8 reasonably be questioned.”3 9 10 Despite the Louisiana Supreme Court’s repeated use of the CJC to recuse judges,4 lower 11 courts consistently refuse to grant litigants’ motions to recuse on grounds of the appearance of 12 impropriety.5 The typical rationale for this refusal involves the countervailing duty of a judge to 13 sit and the lack of an explicit ground for impropriety in article 151. Amending article 151 to include 14 a ground for the appearance of impropriety could help resolve the discrepancy between a litigants’ 15 right to motion for recusal and a judge’s ethical obligations under the CJC.6 16 17 Survey of Other Jurisdictions 18 19 Other jurisdictions in the United States can be divided roughly into four categories based 20 on state law of recusal with respect to impropriety. First, some states explicitly provide in 21 1 La. Code of Civ. Proc. art. 151(A)(4) (2019). 2 LA ST CJC Canon 2. 3 LA ST CJC Canon 3(C). 4 See, e.g. In re Cooks, 694 So.2d 892 (La. 1997); Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Machinery Sales Company, Inc., 927 So.2d 1094, 1097 (La. 2006); Tolmas v. Parish of Jefferson, 87 So.3d 855 (La. 2012). 5 See, e.g. Guidry v. First National Bank of Commerce, 755 So.2d 1033 (La. App. 4th Cir. 2000); Southern Casing of La., Inc. v. Houma Avionics, Inc., 809 So.2d 1040 (La. App. 1st Cir. 2001); Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc., 998 So.2d 107 (La. App. 5th Cir. 2008). 6 See Roy J. Rodney, Jr. & John K. Etter, The Last Stand of the Duty to Sit: Recusal in Louisiana, 61 La. B.J. 254 (2014).

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procedural statutes that the appearance of impropriety or a reasonable belief questioning 1 impartiality is a ground for recusal. Second, some states explicitly provide in procedural statutes 2 that a violation of the CJC shall serve as a ground for recusal. Third, some states jurisprudentially 3 allow litigants to motion for recusal based on grounds in the CJC. Finally, some states, including 4 Louisiana, separate the ethical obligations in the CJC from a litigant’s right to motion for recusal 5 under state procedural law. 6

a. Impropriety and impartiality explicitly in procedural statutes 7

States that provide impartiality or impropriety language similar to the CJC include Texas, 8 California, Michigan, Wisconsin, Alaska, and Mississippi. Some of these statutes operate 9 differently, but all move beyond the strictures of actual bias. 10

11 Michigan is one of the only states to explicitly use the term “appearance of impropriety” 12

in its civil procedure statutes. Michigan law provides that a party may motion for disqualification 13 if the judge “has failed to adhere to the appearance of impropriety standard.”7 The statute then 14 references CJC Canon 2 to clarify the connection between the two rules.8 Texas law also borrows 15 language from the CJC and provides that a judge must recuse if “the judge’s impartiality might 16 reasonably be questioned.”9 Texas jurisprudence is somewhat developed on this language, and 17 Texas courts extend this language to the appearance of impropriety.10 Much like Texas, 18 Mississippi law provides, “Any party may move for the recusal of a judge of the circuit or county 19 court if it appears that the judge's impartiality might be questioned by a reasonable person knowing 20 all the circumstances.”11 Unlike Texas, Mississippi jurisprudence is not well developed on the 21 meaning of this language. Nevertheless, the Mississippi rule tracks CJC language. 22

23 California law provides that a judge shall be disqualified if “the judge believes there is a 24

substantial doubt as to his or her capacity to be impartial.”12 In contrast to Texas, California 25 couches the language from the perspective of the judge rather than a reasonable person. 26 Nevertheless, California jurisprudence has held that the judge should use an objective reasonable 27 person standard to evaluate and recuse oneself.13 Similarly, Wisconsin law provides that a judge 28 shall disqualify himself “[w]hen a judge determines that, for any reason, he or she cannot, or it 29 appears he or she cannot, act in an impartial manner.”14 (Emphasis added). This statute is also 30 phrased from the perspective of the judge. In contrast to California, Wisconsin jurisprudence 31 appears to hold that this standard is actually a subjective standard from the point of view of the 32 judge.15 Finally, Kentucky law provides similarly in that a judge shall recuse if “he has knowledge 33

7 Mich. Ct. R. 2.003(C)(1)(b) (2019). 8 Id. 9 Tex. R. Civ. P. 18b (2019). 10 Fuelberg v. State (App. 3 Dist. 2014) 447 S.W.3d 304. 11 MS R UNIF CIR AND CTY CT Rule 1.15. 12 Cal. Civ. Proc. Code § 170.1 (West). 13 Wechsler v. Superior Court, 224 Cal. App. 4th 384, 168 Cal. Rptr. 3d 605 (2014) (“The applicable disqualification standard is an objective one: if a fully informed, reasonable member of the public would fairly entertain doubts that the judge is impartial, the judge should be disqualified.”). 14 Wis. Stat. Ann. § 757.19(2)(g) (West). 15 Storms v. Action Wisconsin Inc., 2008 WI 110, ¶ 24, 314 Wis. 2d 510, 526, 754 N.W.2d 480, 488 (“[S]ubsection (2)(g) concerns ‘not what exists in the external world ... but what exists in the judge's mind.’”).

3

of any other circumstances in which his impartiality might reasonably be questioned.”16 Kentucky 1 jurisprudence is not robust, but appears to be in line with California in terms of perspective and 2 objectivity of the standard.17 3

4 In Alaska, the disqualification statute’s phrasing leaves some ambiguity. Alaska law 5

provides that a judge “may not act in a manner in which . . . the judicial officer feels that, for any 6 reason, a fair and impartial decision cannot be given.”18 Alaska jurisprudence does not offer a clear 7 answer on whether the standard should be objective or subjective.19 Alaska may have strayed too 8 far from the CJC language; however, this ground for recusal does appear to offer more protection 9 than Louisiana’s recusal law in some circumstances. 10

b. Statutes that reference the CJC 11

Several states provide explicitly that the rules within the CJC apply to disqualification and 12 recusal. These states include Mississippi, Arkansas, Minnesota, New Hampshire, Florida, and 13 Indiana. Mississippi is unique in that its statute uses the impartiality language from the CJC, but 14 also designates the CJC rules in general as grounds for disqualification.20 The other states simply 15 provide that a judge shall disqualify or recuse when such action would be proper under the CJC.21 16

c. Statutes that jurisprudentially incorporate the CJC 17

Many states jurisprudentially allow litigants the right to motion to disqualify or recuse a 18 judge based on grounds in the CJC. These states have either extended their “bias,” “prejudice,” or 19 “interest” provisions to include CJC grounds such as questionable impartiality or have enacted the 20 CJC as the lone authority governing judges. States in this camp include New York, Massachusetts, 21 Montana, Colorado, Nevada, North Carolina, and Missouri.22 In Missouri, litigants are entitled to 22 16 Ky. Rev. Stat. Ann. § 26A.015(2)(e) (West). 17 Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 471 (Ky. 2010) (“recusal is proper if a judge determines that ‘his impartiality might reasonably be questioned;’ in fact, it is mandatory.”). 18 Alaska Stat. Ann. § 22.20.020 (West). 19 See DeNardo v. Maassen, 200 P.3d 305, 311 (Alaska 2009) (“We now hold that disqualification is not required simply because a party is separately suing the judge in the judge's official capacity or based on the judge's performance of official duties, as long as the judge reasonably believes he or she can be fair and impartial.”); But see Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (“A judicial officer must disqualify himself or herself in any proceeding in which the judicial officer's impartiality might reasonably be questioned.”). 20 MS R UNIF CIR AND CTY CT Rule 1.15 (“or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law.”). 21 Ark. Code Ann. § 16-15-111 (West) (“No judge of the county court shall sit on the determination of any case in which he or she is interested in the outcome, is related to any party within the third degree of consanguinity or affinity, has been of counsel, or is otherwise disqualified under the Arkansas Code of Judicial Conduct”). Minn. R. Civ. P. 63.02 (“No judge shall sit in any case if disqualified under the Code of Judicial Conduct.”); NH R S CT Rule 21A (“A motion for recusal shall: (1) be made in writing, (2) state clearly and concisely in separately numbered paragraphs each ground relied upon as a basis for recusal together with the facts alleged in support thereof and, if applicable, citations to any pertinent provision of Supreme Court Rule 38, The Code of Judicial Conduct, (3) contain a verification by affidavit of any facts upon which the motion is grounded . . . .”); FL ST J ADMIN Rule 2.330 (“Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.”); Ind. R. Trial P. 79 (“A judge shall disqualify and recuse whenever the judge . . . is associated with the pending litigation in such fashion as to require disqualification under the Code of Judicial Conduct or otherwise.”). 22 C.R.C.P. 97 (2019) (“A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney

4

one automatic change of judge, but if there is removal for cause, CJC grounds are included.23 The 1 major weakness with this group of states is that the general rule is more difficult to discern. The 2 jurisprudence is not necessarily robust, and courts appear to take an “I know it when I see it” 3 approach. 4

d. States that disallow the appearance of impropriety 5

Only a few states are similar to Louisiana. Iowa has jurisprudentially disallowed the 6 appearance of impropriety as a ground for recusal.24 Arizona has a statute with similar language 7 to Louisiana, and the Arizona jurisprudence appears to struggle with impartiality and impropriety 8 just like Louisiana.25 9 10 Conclusions and Observations 11 12

The states that explicitly use the CJC language or incorporate the CJC by reference are 13 most likely to have consistent and fair recusal rules. Louisiana should follow a similar solution to 14 Texas, Michigan, or Mississippi. Texas and Mississippi borrow the language from Canon 3(C) of 15 the CJC regarding whether a judge’s “impartiality might reasonably be questioned.” Michigan 16 goes further and actually uses the term “appearance of impropriety.” If Louisiana wants to track 17 the CJC language it should add a ground for appearance of impropriety and a ground for if the 18 judge’s impartiality might reasonably be questioned. The latter should be phrased to connote an 19 objective standard. Alternatively, Louisiana could add a provision to art. 151 that includes grounds 20 in the CJC itself. 21

as to render it improper for him to sit on the trial, appeal, or other proceeding therein.”); S.J.C. Rule RULE 3:09 CJC 2.11 (Massachusetts using the CJC as the only law over judges); N.Y. Judiciary Law § 14 (McKinney) (“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.”); Nev. Rev. Stat. Ann. § 1.230 (West) (“A judge shall not act as such in an action or proceeding when implied bias exists in any of the following respects: (a) When the judge is a party to or interested in the action or proceeding.”); Mont. Code Ann. § 3-1-803 (West) (Any justice, judge, justice of the peace, municipal court judge or city court judge must not sit or act in any action or proceeding: 1. To which he is a party, or in which he is interested.”); N.C. R. C.J.C. Canon 3C(1) (North Carolina using the CJC as the law over judges). 23 § 1:9.Disqualification of judges, 12 Mo. Prac., Jurisdiction Venue Limitations § 1:9 (3d ed.). 24 Iowa Code Ann. § 602.1606 (West); In Interest of C.W., 522 N.W.2d 113, 117 (Iowa Ct. App. 1994) (“Actual prejudice must be shown before a recusal is necessary. The appearance of impropriety is not sufficient to merit recusal.”). 25 Ariz. Rev. Stat. Ann. § 12-409 (2019).