Opinion
NO. 2016–C–1316
05-10-2017
Roy F. DUSSOUY, Jr. v. Lisanne Alack DUSSOUY
David M. Prados, LOWE, STEIN, HOFFMAN ALLWEISS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139–7735, COUNSEL FOR RELATOR Elizabeth J. Wilson, MIDDLEBERG RIDDLE GROUP, 909 Poydras Street, Suite 1400, New Orleans, Louisiana 70112, COUNSEL FOR RESPONDENT
David M. Prados, LOWE, STEIN, HOFFMAN ALLWEISS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139–7735, COUNSEL FOR RELATOR
Elizabeth J. Wilson, MIDDLEBERG RIDDLE GROUP, 909 Poydras Street, Suite 1400, New Orleans, Louisiana 70112, COUNSEL FOR RESPONDENT
(Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, and Judge Sandra Cabrina Jenkins )
JUDGE SANDRA CABRINA JENKINS
Relator Lisanne Alack Dussouy seeks review of the trial court's December 2, 2016 judgment granting plaintiff Roy F. Dussouy, Jr.'s Motion to Recuse Judge Bernadette D'Souza. For the reasons that follow, we grant the writ application and reverse the trial court's judgment.
Factual and Procedural Background
Judge D'Souza has handled this contentious domestic matter since August 2014. Following a status conference in September 2016, counsel for Mr. Dussouy learned that Judge D'Souza's law clerk, Sara Guruswamy, had previously accepted employment with Winsberg & Arnold, the law firm representing Ms. Dussouy. On November 28, 2016, Mr. Dussouy filed a Motion to Recuse Judge D'Souza under La. C.C.P. art. 151(A)(4) and La. Rule of Professional Conduct 1.12. In the Motion to Recuse, Mr. Dussouy described the "prohibited conduct" as Judge D'Souza's "interest and/or bias" toward Ms. Dussouy's law firm, and an unspecified party's failure to give him written notice of opposing counsel's relationship to Judge D'Souza so that he would have the opportunity to give his informed consent. According to Mr. Dussouy, because recusal "promote[s] confidence in the judiciary by avoiding even the appearance of impropriety," recusal was required because the prohibited conduct created a "strong appearance of partiality."
The recusal matter was heard before Judge Regina Bartholomew Woods on December 2, 2016. After hearing testimony at the recusal hearing, Judge Woods stated: "So while it disturbs me greatly to do this, I find that while there is no actual bias, no actual impropriety, to avoid the appearance of impropriety I have no choice but to recuse Judge D'Souza from this matter."
On December 2, 2016, Judge Woods signed a judgment granting Mr. Dussouy's Motion to Recuse, and re-allotting the matter to another domestic court division. On December 20, 2016, the law firm of Winsberg & Arnold withdrew from representing Ms. Dussouy in this matter.
Discussion
In support of his argument for recusal, Mr. Dussouy relies on La. C.C.P. art. 151(1)(4), Canon 3(C) of the Code of Judicial Conduct, and Rule of Professional Conduct 1.12.
La. C.C.P. art. 151
La. C.C.P. art. 151 sets forth the mandatory grounds for recusal, stating, 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.
According to the Louisiana Supreme Court, Article 151(A)(4)" ‘requires a finding of actual bias or prejudice,’ which ‘must be of substantial nature and based on more than conclusory allegations.’ " Covington v. McNeese State Univ., 10-0250, pp. 2-3 (La. 4/5/10), 32 So.3d 223, 224–25. See also Succession of Manheim , 03–0282, 03-0283, p. 8 (La.App. 4 Cir. 10/15/03), 859 So.2d 836, 840 ("A judge can only be removed upon a finding of actual bias or prejudice; a substantial appearance of impropriety or even a mere appearance of impropriety are not causes for removing a judge."); Guidry v. First Nat'l Bank of Commerce , 98-2383, pp. 5-6 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1037 ("mere appearance of impropriety" cannot be a basis for recusal); Chauvin v. Sisters of Mercy Health Sys. , 01-1834, pp. 2-3 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, 835 (same).
Our review of the record confirms that Mr. Dussouy failed to present a substantial factual basis for a showing of actual bias or prejudice necessary to support his claim that Judge D'Souza "would be unable to conduct fair and impartial proceedings." Thus, we find that Mr. Dussouy has failed to satisfy his burden of showing that Judge D'Souza should be recused pursuant to La. C.C.P. art. 1151(A)(4).
Code of Judicial Conduct Canon 3(C)
In his writ application, Mr. Dussouy also contends that recusal was required under Canon 3(C) of the Code of Judicial Conduct :
C. Recusation. A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself. (Emphasis added.)
The denial of a motion to recuse based on Canon 3(C) of the Code of Judicial Conduct is reversible error. See Folse v. Transocean Offshore USA, Inc. , 04-1069 (La. 5/7/04), 872 So.2d 467. As with La. C.C.P. art. 151(A)(4), a party who challenges a trial judge's non-compliance with Canon 3(C) has the "burden to prove that a recusal is warranted by presenting evidence of a substantial nature and based on more than conclusory allegations." Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Mach. Sales Co. , 05-0715, p. 5 (La. 4/17/06), 927 So.2d 1094, 1097.
Again, we find that Mr. Dussouy has failed to satisfy his burden of presenting substantial evidence which might reasonably call into question Judge D'Souza's impartiality in this matter.
Rule of Professional Conduct 1.12
Finally, Mr. Dussouy argues that recusal was required because Ms. Guruswamy and Winsberg & Arnold violated Louisiana Rule of Professional Conduct 1.12 by failing to provide written notice that Ms. Guruswamy was employed by Ms. Dussouy's law firm, which created "a taint and a presumed appearance of impropriety that cannot be erased from this case if it remained on Judge D'Souza's docket."
Rule 1.12 of the Louisiana Rules of Professional Conduct states:
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person unless all parties to the proceeding give informed consent, confirmed in writing. ...
Rule 1.16(a) provides:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in a violation of the rules of professional conduct or other law;
We find no legal basis in Rule of Professional Conduct 1.12 for the recusal of Judge D'Souza based on the alleged failure of Ms. Guruswamy and/or Winsberg & Arnold to notify Mr. Dussouy in writing that Judge D'Souza's law clerk was hired by Ms. Dussouy's attorneys. Rule 1.12 requires only that the Winsberg & Arnold law firm withdraw from representing Ms. Dussouy, which it did in this matter.
Conclusion
Neither La. C.C.P. art. 151(4), Canon 3(C) of the Code of Judicial Conduct, nor Rule 1.12 of the Rules of Professional Conduct require the recusal of Judge D'Souza in this matter. Accordingly, we reverse the trial court's December 2, 2016 judgment.
WRIT GRANTED; REVERSED
LANDRIEU, J., DISSENTS WITH REASONS.
LOBRANO, J., CONCURS IN THE RESULTS OF THE MAJORITY OPINION
LEDET, J., DISSENTS WITH REASONS
LANDRIEU, J., DISSENTS WITH REASONS.
The record before us establishes that on September 19, 2016, Judge Bernadette D'Souza conducted a status conference in chambers in this contentious custody matter that has been before her for several years. Her law clerk participated in the conference. After the conference, counsel for Mr. Dussouy learned that the law clerk had, by the time of the status conference, accepted a job to work for the law firm representing Ms. Dussouy in the custody matter. Neither the law clerk, members of the law firm, nor Judge D'Souza disclosed this fact to Mr. Dussouy or his counsel on the day of the conference or at any time thereafter. Counsel for Mr. Dussouy learned of the employment later and filed the motion to recuse that is before us for review.
While we find no actual bias or prejudice on the part of Judge D'Souza and have no evidence to suggest that the failure to disclose was intentional, we cannot say that Judge Woods, assigned to hear the recusal motion, abused her discretion in finding that, under the circumstances presented here, Judge D'Souza's "impartiality might reasonably be questioned." See Canon 3(C) of the Code of Judicial Conduct, and Folse v. Transocean Offshore USA, Inc., 04-1069 (La.5/7/04), 872 So.2d 467.
In briefs, it is represented that the law firm employing the law clerk withdrew as counsel for Ms. Dussouy and suggests that this cures the need for recusal. Pretermitting whether we can consider the withdrawal as it occurred after the judgment granting recusal, we find that the withdrawal does not render the issue moot as it is the litigants' confidence in the court that is at issue here.
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LOBRANO, J., CONCURS IN THE RESULTS OF THE MAJORITY OPINION.
LEDET, J., DISSENTS WITH REASONS
I dissent for the reasons assigned by Judge Landrieu.