In Re: The Judicial Commitment of M.M. (Brossette Contempt Proceeding)

• Court: Louisiana Court of Appeal
• Decided: May 25, 2022
• Docket: 54,481-CA
• Status: Published

Opinion

Judgment rendered May 25, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,481-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

IN RE: JUDICIAL COMMITMENT OF M.M. (EDWARD BROSSETTE CONTEMPT PROCEEDING)

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 618,253

Honorable Karelia R. Stewart, Judge

BUREAU OF LEGAL SERVICES, Counsel for Appellant, LA DEPT. OF HEALTH Edward M. Brossette By: Fernin F. Eaton Neal R. Elliott, Jr. Krystal Airs Brown

RONALD J. MICIOTTO Counsel for Appellee, JUSTIN P. SMITH Hon. Robert Waddell

Before MOORE, STONE, and ROBINSON, JJ. MOORE, C.J.

Edward Brossette, an attorney with the Louisiana Department of

Health (“LDH”), Office of Behavioral Health (“OBH”), appeals a judgment

that found him in constructive contempt of court for disobeying two portions

of a rule in a judicial commitment case: to include another arm of LDH, the

Office for Citizens with Developmental Disabilities (“OCDD”), in the

action, and to return the patient, MM, to Caddo Parish for a placement

hearing. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

In a previous opinion, In re Commitment of MM, 53,577 (La. App. 2

Cir. 9/23/20), 303 So. 3d 1095, this court set aside an earlier finding of

contempt on grounds that Brossette was entitled to have the contempt rule

heard by a judge other than the one who accused him of contempt. For

purposes of clarity, we will restate the essential facts.

The patient, MM, was a 57-year-old woman in the Lafayette area with

the dual diagnosis of schizoaffective disorder (a mental illness) and

intellectual disability (a developmental disability). She was receiving daily

assistance from OCDD for the latter condition. At some point, the mental

illness flared up, she became dangerous to herself and to others, and OCDD

felt it could no longer meet her needs. MM was admitted to Brentwood

Hospital, in Shreveport, on July 25, 2019, as no psychiatric beds were

available in the Lafayette area.

Brossette, an experienced attorney but relatively new to LDH, filed a

petition for judicial commitment under La. R.S. 28:54, et seq., the behavioral

health law (notably, not the developmental disability law). The case was

assigned to Judge Robert Waddell (now retired), who appointed a Mental Health Advocacy Service attorney, Mr. Sale, to represent MM, and a

psychiatrist, Dr. Ogundeji, to examine her. Mr. Sale immediately argued

that the commitment should be handled under the developmental disability

law. At a hearing on August 7, Brossette did not submit the doctor’s report,

and Judge Waddell upbraided him about this. Two days later, Brossette

amended his petition, to require Dr. Ogundeji to issue a report three days

before the next hearing.

At that hearing, August 14, Judge Waddell told Brossette that OCDD

was a necessary party. Brossette, however, replied that OCDD’s services

would be “available” to MM once her psychiatric issues had been resolved.

Dr. Ogundeji testified that MM was dangerous to herself and to others, and

qualified for judicial commitment. Judge Waddell fixed a commitment

hearing for August 28.

Before that date, however, a space opened at Northlake Behavioral

Health System, in Mandeville. Brossette emailed Judge Waddell and Mr.

Sale about this on August 27, and, getting no objection from Judge Waddell,

had MM transferred there promptly. Mr. Sale, however, objected.

At the placement hearing, August 28, Brossette called two OCDD

witnesses who testified that MM really needed to be handled through the

behavioral health process, not the OCDD system; however, Mr. Sale argued

that she needed OCDD services. Judge Waddell told Brossette that he had

not intended for MM to be placed until the placement hearing could be held,

and he refused to sign the proposed placement judgment.

Judge Waddell ordered Brossette to have MM returned to Caddo

Parish for that hearing (as well as for further evaluation). Judge Waddell

also reminded Brossette that he (Brossette) needed to make OCDD a party to 2 the action. Brossette replied, “We’re not going to amend the petition to

proceed under OCDD.” Later, Brossette filed a motion to dismiss the

commitment petition, and obtained a physician’s emergency certificate to

allow MM to stay at Northlake.

At the next hearing, September 9, Brossette called Ms. Landry, an

LDH regional attorney in Lafayette, to try to explain LDH’s approach to

cases like this: mental health treatment must come before developmental

disability services. Brossette also offered a letter from MM’s psychiatrist at

Northlake saying that it was not safe for her to make the trip from

Mandeville to Shreveport, in her current condition. Judge Waddell said the

case was “fouled up from the first” and denied Brossette’s motion to

dismiss; however, he declared MM “mentally ill” and committed her to

LDH custody for 180 days maximum. He added that he was considering

citing Brossette and LDH for contempt of court, and fixed a hearing on this

for September 11.

At the September 11 hearing, Judge Waddell found that Brossette

“just did not do what I said,” held him in contempt, and imposed a fine of

$500 and 24 hours in jail, suspended. Brossette objected and requested a

hearing on the matter; Judge Waddell set this for October 15.

Before that hearing, Judge Waddell filed a rule nisi against Brossette

for contempt, citing his (1) failure to timely file Dr. Ogundeji’s report, (2)

failure to include OCDD in the matter, (3) transferring MM to Northlake

without court authority, and (4) failure to transport her back to Caddo Parish

after being specifically ordered to do so.

Brossette filed a motion for an impartial judge to hear the contempt

rule; at the hearing, October 15, Judge Waddell denied this. He then found 3 Brossette in contempt, fining him $100 and sentencing him to four hours in

Caddo Correctional Center – not suspended.

Brossette applied for a writ, which this court converted to an appeal.

In re Commitment of MM, supra. We reversed and set aside the judgment

and remanded the case to be heard by a different, impartial judge. Back in

the First JDC, the matter was assigned to Judge Karelia Stewart and,

eventually, the parties submitted the case on the record.

ACTION OF THE DISTRICT COURT

Ruling from the bench, Judge Stewart carefully summarized the facts,

recognizing that there had been “some confusion” in the commitment

procedure. As to Count 1, failure to timely file the doctor’s report, she

found no intent to violate the court’s order; as to Count 3, transporting MM

to Northlake without the court’s permission, she found the attorneys

“acknowledged confusion.”

As to Count 2, however, she found that Judge Waddell directed

Brossette to “bring in/include OCDD” three times on August 7, once on

August 14, and again on August 28, but then Brossette replied that he was

not going to amend the petition to do so. Judge Stewart found that this

proved intent to defy the authority of the court.

As to Count 4, she found that there was conflicting evidence whether

carrying MM back to Shreveport would have been safe, but Brossette

himself created the whole problem when he moved her there in the first

place, and there was “much” he could have done to cure the issue; thus,

there was willful disobedience of the court’s order. She also observed that a

judge is entitled to rely on an attorney as an officer of the court; if the

attorney disagrees, his remedy is to take a writ, not to disobey the court’s 4 order. She imposed a $100 fine, to be stayed until the matter is fully

appealed, and no jail time. Brossette appealed suspensively.

THE PARTIES’ POSITIONS

Brossette designates three assignments of error:

Assignment 1: The court erred in finding him guilty of constructive contempt for failing to include OCDD in the mental health judicial commitment.

Assignment 2: The court erred in finding him guilty of constructive contempt for not returning MM to the jurisdiction of the court after being specifically ordered to do so.

Assignment 3: The court erred in imposing a fine of $100 on Brossette.

By way of background, Brossette urges that most attorneys and judges

are simply not familiar with the commitment processes for dually diagnosed

patients. The distinction, he asserts, is explored in the series of cases

culminating in Matter of Commitment of Cole, 18-1760 (La. App. 1 Cir.

4/17/19), 276 So. 3d 601: persons with developmental disability are handled

through the developmental disability law, La. R.S. 28:451.1 – 455.2 (the

domain of OCDD); those with mental illness are handled through the

behavioral health law, La. R.S. 28:1 – 237, especially R.S. 28:54 (the

domain of OBH, Brossette’s agency).1 The crux of the issue is that when a

person already receiving OCDD assistance develops a sudden mental illness,

she must be placed pursuant to the behavioral health law (OBH) until she is

restored to her baseline functioning, at which time the services of OCDD can

be recommenced. Brossette contends that this is where Judge Waddell went

totally wrong: he simply failed to grasp that MM’s psychiatric condition

1 The earlier case was In re Commitment of Cole, 18-916 (La. App. 3 Cir. 1/16/19), 2019 WL 212178, and the later, Matter of Cole, 19-1163 (La. App. 1 Cir. 12/27/19), 293 So. 3d 1163, writ denied, 20-00184 (La. 3/9/20), 307 So. 3d 1029. 5 could not be addressed by OCDD, but only by OBH, and this is why he

(Brossette) refused to bring OCDD into the suit.

Brossette shows that constructive criminal contempt must be proved

beyond a reasonable doubt, Billiot v. Billiot, 01-1298 (La. 1/25/02), 805 So.

2d 1170.2 He concedes that he was accused of “willful disobedience of any

lawful judgment, order, mandate, writ, or process of the court,” La. C.C.P.

art. 224 (2), and with conduct “intended to obstruct or interfere with the

orderly administration of justice, or to impair the dignity of the court or

respect for its authority,” La. C.C.P. art. 224 (10). He contends that there

was reasonable doubt and justifiable excuse for his conduct.

As for Assignment 1, Brossette restates the grand, interlocking

scheme of OBH and OCDD services provided in Title 28, as interpreted in

Commitment of Cole, supra, and asserts the “overwhelming evidence” that

MM needed inpatient mental health commitment. Even though he told

Judge Waddell, “We’re not going to proceed under OCDD,” he contends

this did not prove “willful defiance to not make OCDD a party” but only an

effort to explain to the judge that LDH simply could not proceed under the

developmental disability law. He concedes his conduct was “clumsy,” and

he was “new to the judicial commitment laws and process,” but urges that

his total conduct established reasonable doubt and justifiable excuse. At oral

argument, counsel further suggested that OCDD was not a juridical person,

and thus not capable of being joined as a party.

2 He also criticizes two of this court’s recent opinions for, in his view, misstating the burden of proof, Miller v. Madison Parish Police Jury, 53,955 (La. App. 2 Cir. 5/17/21), 320 So. 3d 479, Young v. Young, 54,038 (La. App. 2 Cir. 6/30/21), 323 So. 3d 991. We would point out that Miller and Young were both cases of civil contempt, in which the burden of proof is always a preponderance. 6 As for Assignment 2, Brossette shows that he offered a physician’s

letter stating that MM could not be transported back to Shreveport, due to

her health, and nobody showed that he could have overridden those doctor’s

orders. He submits that these facts create reasonable doubt and justifiable

excuse for his conduct. He also argues that under R.S. 28:55 E(2), it is not

the district court, but LDH, that can determine placement of a patient; far

from willfully disobeying the court, he was merely trying to facilitate the

statute.

As for Assignment 3, he suggests that the Mental Health Advocacy

attorney, Mr. Sale, was at fault for not giving the court clearer guidance, and

that Judge Waddell was at fault for not accepting the testimony of his

witness, Ms. Landry, who laid out the LDH procedure at the September 9

hearing. He submits that the blame should not be placed on the “new

regional attorney,” and concludes that the judgment and fine should be

reversed.

Judge Waddell responds that the case is simple: Brossette felt that the

judge was wrong in his ruling, and therefore he (Brossette) was justified in

not carrying it out. He cites Brossette’s statement at the August 28 hearing,

“We’re not going to amend the petition to proceed under OCDD,” as

sufficient to prove willful disobedience of the direct order to bring OCDD

into the proceeding. As to the other count, Judge Waddell shows that he had

already admonished Brossette for sending MM to Mandeville without

consent of the court, and he clearly ordered him to bring her back for the

placement hearing. Despite the letter from MM’s psychiatrist, the decision

to leave her at Northlake was essentially Brossette doing what he “feels

should be done and not what the judge ordered done.” Judge Waddell 7 concludes that there was no manifest error, and the judgment should be

affirmed.

APPLICABLE LAW

Willful disobedience of any lawful judgment, order, mandate, writ, or

process of the court is a constructive contempt of court. La. C.C.P. art. 224

(2). Also, any act or omission intended to obstruct or interfere with the

orderly administration of justice, or to impair the dignity of the court or

respect for its authority, and which is not a direct contempt, is a constructive

contempt of court. La. C.C.P. art. 224 (10). To find a person guilty of

constructive contempt, the court must find that he violated the order of court

intentionally, knowingly, and purposely, without justifiable excuse. Lang v.

Asten Inc., 05-1119 (La. 1/13/06), 918 So. 2d 435; Arrington v. Arrington,

41,012 (La. App. 2 Cir. 4/26/06), 930 So. 2d 1068. Willful disobedience

means a consciousness of the duty to obey and an intent to disregard that

duty. Dauphine v. Carencro High Sch., 02-2005 (La. 4/21/03), 843 So. 2d

1096. In a criminal contempt proceeding, the court seeks to punish a person

for disobeying a court order; the burden of proof is beyond a reasonable

doubt. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S. Ct. 1423,

99 L. Ed. 2d 721 (1988); Billiot v. Billiot, supra.

To constitute willful disobedience necessary for criminal contempt,

the act or refusal must be done with an intent to defy the authority of the

court. Dauphine v. Carencro High Sch., supra; Fox v. Fox, 49,619 (La.

App. 2 Cir. 4/22/15), 164 So. 3d 359, writ not cons., 15-1162 (La. 9/18/15),

177 So. 3d 1063. In proceedings for criminal contempt, orders of the trial

judge in the conduct of trials must be obeyed, irrespective of the ultimate

validity of the order, unless the trial judge stays the order or ruling to permit 8 a review. Dauphine v. Carencro High Sch., supra; Jaligam v. Pochampally,

16-0286 (La. 2/25/16), 184 So. 3d 1270 (Crichton, J., concurring).

DISCUSSION

The issue raised by the first assignment is whether Brossette’s refusal

to make OCDD a party was willful, under La. C.C.P. art. 224 (2), and

whether, beyond a reasonable doubt, his conduct was intentional, knowing,

purposeful, and without justification, Lang v. Asten, supra; Arrington v.

Arrington, supra. Brossette has conceded that his conduct toward Judge

Waddell was “clumsy” and he was new to judicial commitment law. He has

not contested the first part of the test, and the record amply supports the

district court’s finding that Judge Waddell gave him a direct order, which he

refused to carry out multiple times.

The topic came up in three consecutive hearings, and Brossette

admitted that even if commitment was under OBH procedure, the services of

OCDD would still be available. For instance, on August 14, this colloquy

occurred:

THE COURT: Did you turn around and make them [OCDD] a party?

MR. BROSSETTE: Sir, I have checked with LDH. She will be – the ODCC services will be available for her. But due to the fact that we believe that she’s a danger to herself and others under the criteria which will come out, I believe, at the commitment hearing –

***

THE COURT: Although I’m sympathetic to the legal argument, I still feel that we need to have the hearing on the regular judicial commitment.

9 MR. BROSSETTE: And Judge, also – although I know it [is] only persuasive authority – the Derrick Cole case out of the first circuit addresses that issue.

THE COURT: I’ll tell you what: I’ll let y’all put that on as a proffer at the end[.]

Given his admission that OCDD would ultimately be involved in the

case, Brossette’s repeated refusal to join that office as a party fully supports

the court’s finding of contempt. Even after Judge Waddell offered to let him

put the Cole case in a proffer, Brossette would not follow the original order.

Notably, the court’s order must be obeyed, “irrespective of the ultimate

validity of the order.” Dauphine v. Carencro High Sch., supra. The

potential relevance of Cole, supra, simply does not rise to the level of

justification. We perceive no error in the district court’s findings and

conclusion.

Finally, we note that the Louisiana Department of Health is a body

corporate with the power to sue and be sued. La. R.S. 36:251 A. OCDD is

an office within LDH. La. R.S. 28:451.2 (19). The state and its departments

are juridical persons. La. C.C. art. 24, Comment (c); Lacerte v. State, 19-

1401 (La. App. 1 Cir. 1/4/21), 317 So. 3d 763. There is no merit to

counsel’s suggestion that OCDD could not be made a party. Brossette’s first

assignment lacks merit.

The issue raised by the second assignment is whether Brossette’s

failure to return MM to the jurisdiction of the court after being specifically

ordered to do so was conduct intended to obstruct or interfere with the

orderly administration of justice, or to impair the dignity of the court, La.

C.C.P. art. 224 (10), proved beyond a reasonable doubt, Lang v. Asten,

10 supra; Arrington v. Arrington, supra. He principally argues that the letter

from MM’s psychiatrist at Northlake provided justification for his conduct.

On close review, we find the record supports the district court’s

finding that if there was a problem, it was mostly of Brossette’s own

making. MM had been at Brentwood for over a month, Judge Waddell had

already held two hearings, and the third was set for August 28; however, on

the eve of that hearing, August 27, Brossette emailed Judge Waddell and Mr.

Sale about the opening at Northlake; without court approval, he moved her

there. He later obtained a physician’s emergency certificate to keep her

there, and at the hearing on September 9, he introduced the psychiatrist’s

letter saying it was not safe for her to return to Shreveport. This whole

sequence of events smacks of an effort to remove MM from the reach of the

court and then to use emergency medical means to keep her out of reach.

This proves, beyond a reasonable doubt, an intent to obstruct or interfere

with the orderly administration of justice and to impair the dignity of the

court.

Brossette further contends that he was in no way trying to obstruct the

law but, rather, to facilitate its purpose, as expressed in La. R.S. 28:55 E(2),

by placing MM in the most appropriate facility. This subsection states,

“Following commitment of the respondent to the department, the department

shall consider all of the following [factors] in determining the appropriate

state treatment facility in which to place the respondent[.]”

It is almost redundant to state, however, that the first part of this

subsection, R.S. 28:55 E(1), makes the commitment a determination of the

court:

11 If the court finds by clear and convincing evidence that the respondent is dangerous to self or others * * * it shall render a judgment for [the respondent’s] commitment. After considering all relevant circumstances, * * * the court shall determine whether the respondent should be committed to a treatment facility[.] However, if the placement determined by the court is unavailable, the court may commit the respondent to [LDH] for appropriate placement[.] ***

In short, a judicial determination of the legal standard, and a judgment

of commitment to LDH, are prerequisites for the exercise of placement by

LDH – an orderly administration that Brossette’s conduct thwarted. The

second assignment of error lacks merit.

The issue raised by the third assignment is whether the blame for

Brossette’s conduct should be shifted to Mr. Sale, the Mental Health

Advocacy attorney, and to Judge Waddell. Brossette contends, in essence,

that they persisted in the wrongheaded view that the developmental

disability law played a part in a case of acute mental illness and behavioral

health.

For the reasons already discussed, Brossette’s conduct went beyond

disagreement with Mr. Sale and Judge Waddell, or advocacy for MM, and

into the realm of defying a direct order and removing MM from the court’s

reach. As noted, refusal to follow a court order is contempt, “irrespective of

the ultimate validity of the order.” Dauphine v. Carencro High Sch., supra.

This assignment does not present reversible error.

CONCLUSION

For the reasons expressed, the judgment of contempt and fine of $100

are affirmed. Edward Brossette is to pay all costs.