Judgment rendered September 23, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,577-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
IN RE: THE JUDICIAL COMMITMENT OF M.M. (BROSSETTE CONTEMPT PROCEEDING)
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 618253
Honorable Robert Paul Waddell, Judge
STEPHANIE M. BORGHARDT Counsel for Appellant, EDWARD M. BROSSETTE Edward M. Brossette (Contempt) KRYSTAL AIRS BROWN NEIL RISLEY ELLIOTT, JR.
Before PITMAN, GARRETT, and STEPHENS, JJ.
PITMAN, J., concurs for the reasons assigned by Garrett, J.
GARRETT, J., concurs with written reasons. STEPHENS, J.
Edward M. Brossette appeals a judgment of the First Judicial District
Court, for the Parish of Caddo, State of Louisiana. In that judgment,
Brossette’s motion requesting an impartial judge was denied. In the same
judgment, Brossette was determined to be in constructive contempt of court
and ordered to pay a fine of $100.00 and serve four (4) hours of
confinement in the Caddo Correction Center. For the following reasons, we
reverse the trial court’s judgment and remand for additional proceedings.
FACTS
This appeal stems from a judicial commitment proceeding
concerning M.M., a woman who was 57 years old at the time of her
commitment. Although this appeal does not pertain to her judicial
commitment, it is necessary to address the details of that proceeding as they
directly relate to the issues on appeal.
M.M. suffers from a dual diagnosis—schizoaffective disorder (a
mental disorder) combined with a mild intellectual disability (a
developmental disability). This dual diagnosis created a procedural
problem for the Louisiana Department of Health (the “LDH”), Brossette,
and the trial court, specifically Judge Robert Waddell. The relevant and
ongoing issue in the proceedings was the applicable statutory law for her
commitment.1 For her developmental disability, M.M. was receiving
support from the Office for Citizens with Developmental Disabilities
(“OCDD”), which operates under the umbrella of LDH. However, M.M.’s
1 Judicial commitment proceedings for individuals with mental illness and substance-related or addictive disorders are provided for in La. R.S. 23:54; whereas, La. R.S. 28:454.6 relates to judicial commitment proceedings for individuals with developmental disabilities. mental illness ultimately deteriorated to a point where she was considered
to be dangerous to herself and others, and the OCDD allegedly could no
longer address or meet M.M.’s needs. Thus, on July 22, 2019, M.M. was
admitted to Lafayette General Hospital for inpatient psychiatric treatment.
LDH determined that M.M. needed long-term inpatient psychiatric
treatment to stabilize her, and the only available program LDH could locate
was at Brentwood Hospital (“Brentwood”) in Shreveport. M.M. was
admitted to Brentwood on July 25, 2019, prior to the filing of the petition.
On July 31, 2019, the petition for commitment was filed pursuant to La.
R.S. 28:54, et seq. by the LDH, Office of Behavioral Health, represented by
Brossette.
An order was entered by the trial court setting a commitment hearing
for August 7, 2019. Dr. Olufemi Ogundeji was ordered to exam M.M. and
prepare a report to determine if she met the criteria for legal commitment.
In that same order, M.M. was appointed an attorney by the Mental Health
Advocacy Service (“MHAS”), which ultimately assigned attorney Al Sale
to represent her. On the day of the scheduled hearing, Sale filed a motion
for dismissal claiming he was not given the requisite reasonable notice with
a physician’s report pursuant to La. R.S. 28:54(D)(1).2 Sale also alleged a
judicial commitment should have been filed under the state’s developmental
disability law to assure that M.M. received appropriate treatment and
benefits under that area of the law, specifically La. R.S. 28:454.5, et seq.
At the August 7 hearing, Judge Waddell noted Brossette had not filed
the physician’s report. Sale pointed out that Brossette had failed to produce
2 The statute requires that a written physician’s report be provided to the individual’s attorney at least three days prior to a commitment hearing. 2 the requisite written report by Dr. Ogundeji as Judge Waddell had ordered.
The record reflects that Brossette apparently failed to inform Dr. Ogundeji
he was to prepare a report for the trial court. As a result, Sale also brought
up the issue of having OCDD added to the proceedings. The commitment
hearing was continued until August 14, and Brossette amended the petition,
alleging that M.M.’s treating physician at Brentwood would prepare a
report and have it to MHAS at least three days prior to the hearing.
The commitment hearing commenced on August 14, 2019, and the
record reflects an “off the record discussion” was held as to the timeliness
of the required physician’s report. Brossette was admonished by Judge
Waddell, and he informed Brossette, “[t]here’s no excuse for that.”
However, the proceeding commenced. Dr. Ogundeji testified that M.M.
had required acute, inpatient psychiatric hospitalization eleven times in the
last eight months. He testified her behavior was “very unmanageable at this
time.” Dr. Ogundeji concluded that M.M. was dangerous to herself and
others and met the criteria for a mental health commitment. M.M. did not
refute the LDH’s evidence and did not request an independent medical
opinion. Based on M.M.’s demeanor (she had an outburst requiring her
removal from the hearing) and Dr. Ogundeji’s report and testimony, Judge
Waddell concluded,
[t]here’s no question that the lady is a danger to herself or others and gravely disabled . . . . I’m going to commit her to LDH, but I’m going to order that this case be continued two weeks for placement. The real issue here is placement and what services she can get.
Significantly, no judgment was signed at that time committing M.M., and
the matter was continued to August 28, 2019, purportedly in order to
determine M.M.’s placement. 3 Prior to the scheduled August 28 placement hearing, the record
reflects an opening became available at Northlake Behavioral Health
System (“Northlake”) in St. Tammany Parish. Brossette asserts he notified
the trial court and Sale by e-mail on August 27 of the opening at Northlake;
however, Sale informed Brossette he opposed the move. Brossette claims
no opposition to the relocation was made by the trial court, and on the same
day, despite the objection by Sale, LDH transported M.M. from Brentwood
to Northlake.
At the August 28 placement hearing, Judge Waddell informed
Brossette he had not intended for M.M. to be placed until the placement
hearing had occurred. He also informed Brossette that M.M. had not been
judicially committed to the custody of LDH and refused to sign the
prepared commitment judgment. Sale explained he also refused to sign the
judgment because the LDH amended petition only cited mental health law
and made no mention of the applicable developmental disability law.
Further, Sale did not agree to waive M.M.’s appearance at the subsequent
hearing; thus, the trial court ordered M.M. be returned to Caddo Parish for
the next hearing. Judge Waddell additionally ordered that M.M. be
returned for further evaluation and determination as to proper services on
her behalf.
On September 5, 2019, Brossette filed a motion and order for
dismissal of the amended petition—notably, the trial court still had not
issued a judgment on the commitment proceedings at this time. Brossette
asserted in the motion that he was under the impression M.M. had been
committed to the custody of LDH, and he referenced the trial court minutes
from the initial proceeding. Further, he asserted that based on this 4 assumption, LDH placed M.M. at Northlake on September 27. Therefore,
after receiving a Physician’s Emergency Certificate (“PEC”), he sought
dismissal of the petition, which would allow Northlake authority to retain
M.M. as a patient. Brossette claimed the PEC made LDH’s amended
petition moot. In response, Sale filed a reconventional demand asserting
M.M. had been transferred to Northlake and not returned to Caddo Parish in
violation of the trial court’s order. Sale alleged M.M. was not receiving
treatment for her developmental disability, and her rights as a mental
health/developmental disability patient were violated by the PEC. He
requested a determination regarding the appropriate placement for M.M. as
per the developmental disability law.
The parties returned for a September 9, 2019 hearing, which
commenced with the trial court’s attention to Brossette’s motion to dismiss
the judicial commitment. Describing the case as being “fouled up from the
first part,” Judge Waddell denied Brossette’s motion; however, he
ultimately entered a judgment finding that M.M. suffered from “mental
illness” causing her to be a danger to herself and others. M.M. was
judicially committed to the custody of LDH for a period not to exceed 180
days. Further, LDH was ordered to ensure M.M.’s continued eligibility and
access to services and the least restrictive placement for her developmental
disability. Also, at that hearing, Judge Waddell stated on the record that he
was considering citing Brossette and/or LDH with contempt of court. A
hearing to determine that issue was set for September 11, 2019.
5 The September 11 hearing commenced with Judge Waddell noting:
Mr. Brossette is back in the courtroom today for contempt.
I’ve given this a lot of thought, Mr. Brossette, and I think you’re in contempt of court, I think in direct contempt.
****
To me, what you did was even more blatant, because I think you just did not do what I said.
Then, Judge Waddell determined Brossette to be in contempt of court,
fining him $500 and sentencing him to 24 hours in jail—all of which he
suspended. At that point, Judge Waddell reviewed, in detail, the
proceedings and his reasons for concluding Brossette was in contempt.
Brossette refused to “accept” Judge Waddell’s finding, objected, and
requested a hearing on the matter in order to dispute the reasons for the
contempt holding. The matter was continued to October 15, 2019.
On October 1, 2019, Judge Waddell filed his own motion against
Brossette, a rule nisi for contempt of court. In that filing, Judge Waddell
recounted the series of events in connection with M.M.’s judicial
commitment, concluding with the claim that Brossette’s actions constituted
constructive contempt in that he: failed to timely file the physician’s report;
failed to include OCDD in the matter; transported M.M. to Northlake
without authority by the trial court; and, failed to transport M.M. back to
Caddo Parish after specifically ordered to do so.
In response to Judge Waddell’s rule nisi, Brossette filed a motion
requesting an impartial judge, citing Kidd v. Caldwell, 371 So. 2d 247 (La.
1979). He argued Kidd mandated claims of constructive contempt should
be tried “before a judge other than the one toward whom the contumacious
6 behavior was directed.” He also argued that consideration by another judge
of the contempt claims “would be better for the appearance of justice.”
A hearing was held on October 15, 2019, and Judge Waddell began
by first considering Brossette’s motion for impartial judge, which he
denied. The judge reasoned that, unlike Kidd, he and Brossette were not
contentious or combative. Judge Waddell stated he simply believed
Brossette circumvented and/or ignored his orders. Then addressing the
contempt charges, Judge Waddell went through a discussion of the claims
made in his rule nisi, noting reasons he believed Brossette was in contempt.
After explaining those reasons, Judge Waddell fined Brossette $100 and
ordered him to serve four hours in jail at the Caddo Correctional Center,
notably a more severe penalty than originally imposed on September 11.
Brossette sought relief through a writ application to this court, which
was granted and remanded for perfection of appeal. This court also stayed
execution of his sentence pending final disposition of this matter. State in
the Int. of M.M. (In Re Brossette Contempt Proceeding), 53,379-CW (La.
App. 2d Cir. 10/18/19). This appeal ensued.
DISCUSSION
In Brossette’s first assignment of error, he maintains the trial court
erred in denying his motion requesting an impartial judge (i.e., recusal).
Brossette recognizes that La. C.C.P. art. 154 states, “If a valid ground for
recusation is set forth in the motion, the judge shall either recuse himself, or
refer the motion to another judge or a judge ad hoc[.]” He also recognizes
the trial court cited him with “constructive contempt” as punishment for
disobeying the trial courts’ order(s). In support of his argument that the
trial erred in denying his motion for an impartial judge, Brossette cites 7 Kidd, supra, arguing the case “traverses the general La. C.C.P. art. 154
requirement . . . of having to plead a valid ground for recusal in his Motion
and mandates that the constructive contempt charges brought against . . .
Brossette should have been heard by another judge.” Whereas Brossette
submits Kidd would mandate that constructive contempt charges compel
consideration by an “impartial” judge, the language in Kidd does not
warrant such a broad application as it was specifically limited to the facts
presented in that case. Id., at 256. Thus, we look to statutory law
pertaining to the recusal of judges.
Louisiana C.C.P. art 154 provides:
A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.
Louisiana C.C.P. art. 151 provides the grounds upon which a judge
shall be recused from a matter. Specifically, La. C.C.P. art. 151 provides,
in pertinent part:
A. A judge of any court, trial or appellate, shall be recused when he . . .
(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 or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.
Notably, when Kidd was rendered in 1979, La. C.C.P. art. 151 was not in its
current form. The article was not amended until 1987, when it was
amended and reenacted to add the language, “[i]s biased, prejudiced, or
8 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 he would
be unable to conduct fair and impartial proceedings.” 1987 La. Sess. Law,
No. 579, §1.
The grounds for recusal enumerated in art. 151 are exclusive and do
not include a “substantial appearance of the possibility of bias” or even a
“mere appearance of impropriety” as causes for removing a judge from
presiding over a given action. Slaughter v. Bd. of Sup’rs of S. Univ. & Agr.
& Mech. Coll., 2010-1114 (La. App. 1 Cir. 08/02/11), 76 So. 3d 465, 471;
writ denied, 2011-2112 (La. 01/13/12), 77 So. 3d 970. Moreover, a judge is
presumed to be impartial. The party seeking to recuse cannot merely allege
lack of impartiality; he must present some factual basis. Further, the bias,
prejudice, or personal interest alleged must be of a substantial nature and
based on more than conclusory allegations. Covington v. McNeese State
Univ., 2010-0250 (La. 04/05/10), 32 So. 3d 223; Riddle v. Premier Plaza of
Monroe, L.L.C., 51,173 (La. App. 2 Cir. 02/15/17), 216 So. 3d 170.
Here, Judge Waddell, when presented with Brossette’s motion for an
impartial judge, had three options under art. 154: (1) deny the written
motion, deciding it lacked the requisite “ground for recusation”; (2) grant
the motion, recusing himself from considering the contempt charges; or (3)
“refer the motion to another judge” for consideration of the recusal issue.
Initially, Brossette maintains Judge Waddell erred in considering the
motion himself and denying it. We agree.
At the October 15 contempt hearing (and before addressing the
contempt charges against Brossette), Judge Waddell considered the recusal
issue, noting: 9 I’m going to deny that. This is not where this was direct contempt where we had a fight. It’s been cordial the whole way[.]
But I’m not going to have somebody else come in and make this like a formal hearing like that. This is strictly a contempt rule. If we did it by that rule, I just think it would be—it durn sure wouldn’t be cost-effective, but it would be burdensome to everybody.
After a brief recess, Judge Waddell revisited Brossette’s motion, which he
denied and briefly explained:
First, having the other judge appointed to hear the contempt rule, I’m going to deny that. I did look at your case of Kidd. Those were very contentious things, hard feelings between the judge. I mean, almost combative between the lawyer and the judge all during the thing and I can see some prejudice.
This does not rise to this[.] I’m not mad at [Brossette] or anything else. I just think that he circumvented or just ignored what I had ordered to do, and for that reason we’re going to have it.
But I don’t think I need to bring in a third judge or a second judge to come in and have a separate hearing. We can have it, and then I’ll make the ruling on the contempt.
We recognize the trial court has discretion to determine if there is a
valid ground for recusal set forth in the motion. State in Interest of N.B.,
52,002 (La. App. 2 Cir. 03/16/18), 248 So. 3d 532, writ denied, 2018-0617
(La. 05/25/18), 243 So. 3d 568. However, considering the facts of this
matter, Judge Waddell abused his discretion in that a valid ground for
recusal was stated in Brossette’s motion under La. C.C.P. art. 151(A)(4).
Because the motion set forth a valid ground (which has already been
described herein), Judge Waddell was mandated to either recuse himself
outright or refer Brossette’s motion to another judge for consideration. La.
C.C.P. art. 154; State in Interest of N.B., supra. His summarily denying
Brossette’s motion, in light of the reasons given, was in error.
10 Next, not only did Judge Waddell err in considering Brossette’s
motion himself, but he erred in failing to recuse himself from the contempt
matter altogether. Here, grounds clearly existed for his recusal, and
Brossette’s request for an impartial judge was not based on mere
allegations, for the record contains ample factual basis supporting Brossette.
Judge Waddell, leading up to the contempt hearing, expressed he was
“aggravated,” “upset,” “slighted,” and “offended” as a result of Brossette’s
actions—all valid reasons (i.e., his bias, prejudice or interest) indicating that
Judge Waddell should have recused himself from considering the contempt
charges he imposed against Brossette. Those reasons are evident in the
various proceedings before the trial court—the record is replete with
instances demonstrating Judge Waddell’s bias.
For instance, at the September 9, 2019 hearing, a judgment
committing M.M. still had not been entered. At that hearing on the
commitment, the trial court was also addressing Brossette’s motion to
dismiss the commitment proceeding, and Judge Waddell stated:
I’m aggravated in this case, very aggravated. It has been fouled up from the first part. And Mr. Brossette, I am very upset with your actions in this case[.]
Then, Judge Waddell went through a brief chronology of the proceedings,
before elaborating:
Bottom line is I said bring her in and give Mr. Sale notice. It wasn’t anything arbitrary. It wasn’t misunderstood. It could not have two connotations. It was as blunt as it could be. And y’all just said, “To heck with that. Let the judge say what he wants. We’re going to do what we want.” That’s the way I feel about it.
He went on:
So I’m caught in a dilemma. Do I get aggravated with the way the case has been handled? And my first thought when I read 11 it this morning was I was going to continue everything to Thursday morning and give you 24 hours to get her body up here and have a hearing, and at the end of the hearing I’m going to have a contempt hearing for complete defiance of my orders and direct contempt of the court[.] But bottom line is, I’m upset. It’s never been done to me. Never have I had that done to me, and I am upset over it.
At that point, Alice Landry, an LDH attorney from Acadiana, interjected
her explanation as to the reasons behind Brossette’s handling of the
commitment. Judge Waddell considered Landry’s explanation, and
responded:
My problem is I told Mr. Brossette—and I’ve know[n] him for years. I don’t like to get on any attorney. But I specifically said I want this done, and you didn’t do it. And I said I want this done, and you didn’t do it. And then you filed the motion to dismiss so you wouldn’t have to do it. To me, that just was a slap in the face for my direct order, not my indirect order.
When I was practicing law, if the judge said something, I may not like it, I have the right to appeal and I have the right to ask for a writ. But I don’t have the right just to ignore it or to do what I want and that’s in essence what the department did here, period—the department and/or Mr. Brossette, or Mr. Brossette and/or the department—because the net effect is, it was.
After some discussion on the record between Judge Waddell, Landry, and
Sale, an agreement was reached that once M.M.’s mental condition was
stabilized, she would resume with the services from OCDD. Towards the
conclusion of the hearing, Judge Waddell revisited the issue of Brossette’s
alleged contempt, commenting:
I don’t have an axe to grind. I hope we all learned from it. But I am—I realize I’m a dinosaur and I realize I’m on the tail-end of my career, but I also believe in the dignity of the court. And if the judge—and I know this is a far-fetched deal, but when I was practicing law, if the judge told me to do cartwheels out there, I physically couldn’t do it. But you bet your you-know- what I would have tried to do the cartwheel in there. I just wouldn’t have gone on by and done something else or moved.
12 And I feel slighted or offended. I think the dignity of this court has been slighted by that. I really do. And I think it can be corrected in the future, but that’s the way I feel.
Judge Waddell’s frustration was further apparent at the September 11
hearing when he explained to Brossette:
If you want to have a hearing on it, we will have a hearing on it, but I don’t know what I’ll do after the hearing. Because I was really upset when I read your first motion, and I was even upset before we had our hearing. And I have cooled down a little bit, but I still think it was a blatant disrespect for the order of the Court.
Considering the record in this case, Judge Waddell erred in failing to
recuse himself. The basis of Brossette’s motion was not mere conclusory
allegations; in fact, this matter was the perfect storm for recusal (i.e.,
Brossette’s actions and omissions in light of Judge Waddell’s orders). As a
result, the record clearly indicates Judge Waddell’s impartiality on the
underlying issue. As stated herein, Judge Waddell made several statements
at the various hearings leaving no doubt his opinion regarding Brossette’s
actions culminating in a contempt charge against the lawyer. In the
commitment hearings leading up to the contempt hearing, Judge Waddell
informed all involved that he was “aggravated,” “upset,” “slighted,” and
“offended” as a result of Brossette’s actions. Judge Waddell’s reaction
shown by his statements on the record indicate not only an actual bias, but
an objective bias and interest in the outcome of the contempt charge. See,
Daurbigney v. Liberty Pers. Ins. Co., 2018-929 (La. App. 3 Cir. 5/9/19),
272 So. 3d 69.
Notably, Judge Waddell’s irritation in this matter was most probably
justified, and this opinion is not to say that Brossette was not in
constructive contempt of court. However, considering the palpable and
13 unmistaken aggravation and offense Judge Waddell felt regarding
Brossette’s actions, it was an abuse of discretion not to have recused
himself from personally considering those charges which he imposed. See,
In re Merritt, 391 So. 2d 440, 444 (La. 1980), where the La. Supreme
Court, citing Kidd, noted, “Considering not only the possibility of actual
bias on the part of the trial judge, but also the possibility of the appearance
of bias, it would be better for the appearance of justice for another judge to
try the instant charge of contempt.”
Since Kidd, and the revision of La. C.C.P. art. 151, two other circuits
have addressed the recusal of a judge when, specifically, a constructive
contempt charge was the underlying issue. In In re Eleanor Pierce Stevens
Living Trust, 229 So. 3d 36 (La. App. 3 Cir. 2017), a new trustee was suing
a prior trustee regarding the administration of a trust. The prior trustee
failed to comply with the trial court’s judgment, and the new trustee
requested the trial court hold him in contempt. There was a hearing on the
contempt issue. But before a judgment was rendered on the contempt, the
prior trustee filed a motion to recuse, alleging the trial court judge and the
new trustee’s attorney had had ex-parte email communications. The motion
to recuse claimed the trial court judge’s action revealed bias. The motion to
recuse was denied. In reviewing the failure to recuse, the Third Circuit
looked to art. 151 “which provides an exclusive list of mandatory grounds
for the recusal of a judge.” Ultimately and after consideration of the record,
the Third Circuit found the claim for recusal to be without merit and did not
recuse the trial judge. Id. at 48.
In State v. Gibson, 95-2297 (La. App. 4 Cir. 01/19/96), 668 So. 2d
449, a lawyer was charged with constructive contempt for making a 14 disparaging comment about a trial judge. The lawyer filed a motion to
recuse arguing that previously the trial judge had presupposed he was guilty
of contempt and would be incarcerated. Later, the trial court denied the
motion to recuse, and considered the constructive contempt charge—
finding the lawyer in constructive contempt. The lawyer appealed, and
argued the applicability of La. C. Cr. P. art 671 (the criminal code
counterpart to art. 151). The Fourth Circuit considered the pertinent
transcripts regarding the interaction between the trial judge and the lawyer
to see if there was a showing of any bias, prejudice or personal interest. In
fact, the Fourth Circuit looked at Kidd, and said “the factors” that led to
Kidd were not shown in the instant case. Id. at 451. Thus, considering the
record, it found the trial court had not erred in failing to recuse himself.
Finally, as a result of Judge Waddell’s error regarding his failure to
recuse, we pretermit review of the substance of the trial court’s judgment.
Were Brossette’s actions merely confusion in the process and inadvertent
mis-lawyering or intentional constructive contempt? That issue should not
have been considered by Judge Waddell and shall be considered by an
impartial judge at the trial court.
CONCLUSION
Considering the foregoing, we reverse the trial court’s judgment as it
pertains to the denial of Edward Brossette’s motion requesting an impartial
judge. The sentence and conviction on the charges of constructive
contempt are set aside, and the case is remanded for a new trial in
15 accordance with the provisions of La. C. Cr. P. art. 24 before a judge other
than Judge Robert Waddell.
JUDGMENT DENYING MOTION FOR IMPARTIAL JUDGE IS REVERSED; SENTENCE ON CONSTRUCTIVE CONTEMPT SET ASIDE; MATTER REMANDED FOR FURTHER PROCEEDINGS.
16 GARRETT, J., concurring.
I concur in the result. Under the unique circumstances presented
here, the constructive contempt proceedings initiated by Judge Waddell
should have been heard by another judge.
The matter comes before us in a rather unusual posture because the
only brief filed with this court was on behalf of Mr. Brossette. The record
on appeal consists of three volumes, which is unusually large for a judicial
commitment proceeding. Judge Stephens has provided a very cogent
explanation of the events leading up to the contempt adjudications. I would
merely add that it is clear from reviewing the lengthy record that Mr.
Brossette was not well-versed in commitment proceedings. It appears that
the instant case was the first one he had ever filed. At least three of the
many court proceedings held in this matter were conducted at Brentwood
Hospital, where M.M. was hospitalized. Presumably, this was done as an
accommodation to the hospital, so the patient would not have to be
transported to the courthouse. This accommodation requires that the judge
and court staff (bailiff, court reporter, and minute clerk) travel from the
courthouse to the facility to conduct court. Mr. Brossette’s lack of
knowledge of commitment procedures necessitated numerous trips to
Brentwood Hospital by the judge and court staff. Judge Waddell’s growing
frustration with Mr. Brossette’s actions is understandable under these
circumstances.
Judge Stephens’s opinion contains many of the comments made on
the record by the court during the protracted proceedings which reflect the
strong feelings and frustration on the judge’s part. After first finding Mr.
Brossette in direct contempt, the court then instituted the written Rule Nisi for Contempt of Court, which ordered Mr. Brossette to show cause why he
should not be held in constructive contempt. The grounds in both contempt
matters appear to be the same. In response to the Rule, another attorney,
appearing on behalf of Mr. Brossette and the Louisiana Department of
Health, filed a lengthy brief and a “Motion for an Impartial Judge.” After
the motion was denied, the second contempt proceeding was summarily
considered and Judge Waddell adjudicated Mr. Brossette guilty of
constructive contempt.
Under prior jurisprudence in this state, 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. C. C. P. art. 151(A)(4). Daurbigney v. Liberty
Pers. Ins. Co., 2018-929 (La. App. 3 Cir. 5/9/19), 272 So. 3d 69. As noted
in Daurbigney, this required subjective proof of actual bias. Under current
jurisprudence from the United State Supreme Court, the Louisiana Supreme
Court, and various appellate courts of this state, there is a due process
analysis that should be considered in recusal matters and it appears that an
objective test is now employed. The objective standard articulated by
Louisiana courts in recent decisions provides:
Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.
See e.g. State v. LaCaze, 2016-0234 (La. 3/13/18), 239 So. 3d 807, cert.
denied, 139 S. Ct. 321, 202 L. Ed. 2d 218 (2018); State v. Daigle, 2018-
0634 (La. 4/30/18), 241 So. 3d 999; Daurbigney v. Liberty Pers. Ins. Co., 2 supra, Menard v. Menard, 2019-580 (La. App. 3 Cir. 3/11/20), 297 So. 3d
82; citing Rippo v. Baker, ___ U.S. ___, 137 S. Ct. 905, 197 L. Ed. 2d 167
(2017). Applying this standard, on this record, objectively speaking, the
probability of actual bias is too high to be constitutionally tolerable.
I do not believe that it is necessary for us to imply that Judge
Waddell was actually biased and not impartial, as suggested by Judge
Stephens’s opinion. In my view, this case presents one of those rare
situations contemplated by our Louisiana Supreme Court in the Kidd case,
where the contempt proceedings should be considered by another judge for
the appearance of justice due to the strong feelings expressed on the record.
Further, this record objectively shows that the probability of actual bias on
the part of the judge or decisionmaker is too high to be constitutionally
tolerable. The case sub judice is clearly the type of situation envisioned by
both Kidd and the newer cases cited above which articulate the objective
due process test.
I agree that the case needs to be remanded for a new hearing before
another judge and, therefore, I concur in the result.