Daurbigney v. Liberty Pers. Ins. Co.

272 So. 3d 69
CourtLouisiana Court of Appeal
DecidedMay 9, 2019
Docket18-929
StatusPublished

This text of 272 So. 3d 69 (Daurbigney v. Liberty Pers. Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daurbigney v. Liberty Pers. Ins. Co., 272 So. 3d 69 (La. Ct. App. 2019).

Opinion

PER CURIAM.

The tenor has changed in recent judicial elections. Now, special interest groups are pouring large sums of money into judicial campaigns, especially on the supreme court and appellate level, hoping that the candidate they are backing will side with their particular philosophy when deciding cases and issues before them. More to the point, special interest groups have now formed Political Action Committees *71(PACs) to raise large sums of money to support candidates the PAC perceives is more philosophically in tune with its goals and agenda.

In Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), the United States Supreme Court held that unions and corporations were "persons" under the First Amendment and therefore entitled to free speech which included spending money without limitations in elections. Hence, PACs are not subject to individual campaign finance limits on contributions and PAC contributions have become increasingly important.

The recent race for a seat on the Louisiana Supreme Court between two sitting judges, Judge Marilyn Castle on the trial court and Judge Jimmy Genovese on the appellate court, was especially contentious. Campaign ads in the print and broadcast media funded by special interest groups escalated, costing the respective candidates' campaigns large sums of money. Such a campaign ad is the focus of the case before us, only the ad was directed by a candidate not against her opponent and not even against the PAC supporting her opponent, but directed against specifically named lawyers who contributed to the PAC.

In the ad at issue, The Committee to Elect Judge Marilyn Castle, designed, authorized and ran an ad that specifically listed named lawyers who concentrate in the area of plaintiff personal injury litigation, claiming that her opponent's judicial impartiality had been compromised. The ad specifically named trial lawyers who "unethically" contributed large sums to his campaign, bypassing campaign finance limits on contributions by creating a special PAC to donate large sums to her opponent's campaign over and above campaign finance limits. PAC contributions, however, are clearly authorized by the Citizens United case and are neither unlawful nor unethical. In fact, public records of campaign financial reports, of which we take judicial notice, show that both campaigns received PAC contributions and/or PACs ran ads on their behalf.1 The ad in question stated in pertinent part:2

SHOULD PERSONAL INJURY LAWYERS PICK OUR NEXT SUPREME COURT JUSTICE Or should you? Personal Injury Lawyers have contributed over $ 1,000,000 to Jimmy Genovese's campaign. Then, when ethics laws prevented them from giving more, 18 of the wealthiest of them poured another $ 945,000 into a PAC (Restore Our Coast ) created to promote Genovese's campaign.

It is significant to note that this particular campaign ad was run prominently in the Daily Advertiser, the Lafayette newspaper in Judge Castle's "home base," so to speak, on November 6, 2016, only two days before the election on November 8, 2016. As shown in the exhibit, the ad featured Judge Castle, pictured in color in her judicial robes, smiling and wearing a large cross, while it portrayed her opponent in dark tones, frowning with a sack of money symbol next to the names of the "wealthy" personal injury attorneys accused of trying *72to "Pick Our Next Supreme Court Justice."

The law firm of Broussard & David, plaintiff/relator's counsel, was the only Lafayette law firm specifically listed in the ad, although their contribution to the PAC in question had been made by a company they managed, 557 Jefferson Street, LLC, and not their law firm directly.3 It is also significant to note that the campaign ad was paid for directly by Judge Castle's campaign, not a competing PAC. Thus, as the candidate, Judge Castle was personally responsible for the content of the ad.4

After a motion hearing had been set before Judge Castle in this case, the plaintiff/relator, through Broussard & David, timely filed a motion to recuse Judge Castle, stating the grounds articulated in La.Code Civ.P. art. 151(A)(4) applied. The Article provides, in pertinent part that, a judge of any court shall be recused when she "(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys ... to such an extent that [s]he would be unable to conduct fair and impartial proceedings." (Emphasis added.)

Recusal issues are difficult for everyone involved. Lawyers, for the most part, are reluctant to file such a motion unless the grounds are compelling, fearing such a motion will anger the trial judge and negatively influence the decision in the case at issue should recusal be denied, and perhaps future cases before the same judge. Judges have a difficult time granting such a motion, fearing that it would be tantamount to a public declaration that they cannot be fair or impartial. Recusal decisions are especially difficult for a judicial colleague assigned to hear a request for recusal of a fellow judge on the same bench.

In prior decisions of our courts, recusal motions have generally been regarded with disfavor, starting out with a strong presumption in favor of the judge sought to be recused. The moving party, under our past jurisprudence, would then have the heavy burden of proving the judge sought to be recused had "actual bias" if the only ground for recusal was bias under La.Code Civ.P. art. 151(A)(4).5

How is an attorney seeking recusal on legitimate grounds in order to protect his client from the very real potential of judicial bias able to prove subjective "actual *73bias"? It is difficult, to say the least, and most lawyers simply will not try if the burden of proof is set so high, often at the expense of their clients.

In recent years, however, the United States Supreme Court has issued several opinions changing the initial inquiry from one of proof of actual specific bias on the part of the trial judge at issue to an objective standard. At least since Withrow v. Larkin , 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), Caperton v. A.T. Massey Coal Co., Inc . 556 U.S. 868

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Bluebook (online)
272 So. 3d 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daurbigney-v-liberty-pers-ins-co-lactapp-2019.