Opinion
No. 2020-O-01069
11-19-2020
IN RE: JUSTICE OF THE PEACE CODY KING, WARD 6, MOREHOUSE PARISH, State of Louisiana
JUDICIARY COMMISSION OF LOUISIANA
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant seat for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B. McCallum.
This is a disciplinary proceeding against Justice of the Peace Cody King ("Respondent") commenced by the filing of three complaints to the Judiciary Commission of Louisiana (the "Commission"). The Commission filed a Notice of Hearing in Case No. 0369, containing one count, on August 29, 2019, alleging therein that Respondent violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) of the Code of Judicial Conduct (1996) and La. Const. Art. V, § 25 (C). After a hearing on these charges, the Commission filed a recommendation with this Court concluding that the above violations had been proven. For reasons set forth herein, we agree with the Commission's recommendation and hereby order the removal of Respondent from office, that he reimburse the Commission the costs incurred in the investigation and prosecution of the case, and further that he pay restitution for an unearned filing fee he failed to return to Parish Leasing Company, LLC.
FACTS AND PROCEDURAL HISTORY
Respondent assumed the office of justice of the peace for Ward 6 in Morehouse Parish on February 6, 2018. By September 19, 2018, the Attorney General's office filed the first of three complaints against Respondent with the Office of Special Counsel (the "OSC") of the Commission, asserting therein that he had failed to respond to constituents in his district and likewise had not responded to letters or calls from the Attorney General's office. Next, on September 24, 2018, Constable David Thomas from Respondent's ward filed a complaint also asserting, inter alia , that Respondent failed to respond to a citizen's request to file an eviction proceeding. Finally, on March 20, 2019, Hannah Zaunbrecher filed a complaint, asserting (1) Respondent was difficult to reach; (2) he overcharged Ms. Zaunbrecher for an eviction she filed; (3) he did not set a court date in the eviction matter despite repeated requests from Ms. Zaunbrecher after the eviction was filed; and (4) Respondent failed to refund the unearned filing fee. The OSC sent letters to Respondent notifying him of each complaint. Respondent did not reply despite later acknowledging that he received them. The Commission authorized an investigation and notified Respondent of the investigation on June 25, 2019. During its investigation, the Commission obtained sworn statements from Ms. Zaunbrecher, Constable Thomas, and Respondent.
Respondent's sworn statement was his only participation in this matter.
On August 29, 2019, the Commission filed a Notice of Hearing in Case No. 0369, alleging therein that Respondent failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary; failed to avoid impropriety and the appearance of impropriety in all activities; failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; failed to be faithful to the law and maintain professional competence in it; failed to dispose of a judicial matter promptly, efficiently, and fairly; failed to diligently discharge his administrative responsibilities and maintain professional competence in judicial administration; engaged in willful misconduct relating to his official duty; engaged in willful and persistent failure to perform his duty; and engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, because he was unavailable and unresponsive to his constable and citizens in his jurisdiction including at least one litigant who filed an eviction; and because he accepted an eviction petition and filing fee from Parish Leasing Company, LLC, but failed to take any action on the matter or return the unearned filing fee. For the foregoing reasons, the Notice of Hearing alleged Respondent violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) of the Code of Judicial Conduct and violated La. Const. Art. V, § 25 (C).
A hearing was held before hearing officer and retired Judge Charles Porter (the "Hearing Officer") on December 10, 2019, during which testimony was taken from witnesses and exhibits were introduced into evidence. Respondent did not appear at the hearing despite being properly served with notice of the hearing as well as a hearing subpoena. In addition, Respondent failed to file an answer to the Notice of Hearing, a witness list, or an exhibit list.
Constable Thomas testified at the hearing that at least three citizens in Respondent's ward contacted him because they could not reach Respondent, including Ms. Zaunbrecher. While Constable Thomas attempted, unsuccessfully, to reach Respondent multiple times, he stated that he did communicate with Respondent at least once when he contacted Constable Thomas about serving a notice to vacate. Constable Thomas testified that he informed Respondent he could not serve a notice to vacate because the plaintiff was required to serve the notice.
Constable Thomas is constable for Ward 6 in Morehouse Parish at the time of the events giving rise to the complaints in this matter,
In addition to Ms. Zaunbrecher, Constable Thomas recalled the name of one other would-be litigant, Charles Armitage, who had contacted him because he was unable to file an eviction with Respondent. Constable Thomas testified he provided Mr. Armitage Respondent's contact information and advised that the police jury may also be able to provide contact information.
Constable Thomas testified that he had not served a single filing for Respondent or attended any proceedings in his court. In his 25 years as constable for Ward 6, he explained – prior to Respondent's taking office – that there had been a functioning court, that he had been active in serving papers, and that approximately seven to eight cases were conducted annually.
Also testifying at the hearing, Ms. Zaunbrecher indicated that she manages over four hundred properties as owner of Parish Leasing Company, LLC. Around October 10, 2018, she began trying to contact Respondent about filing an eviction due to a tenant's failure to pay rent. Although he answered the first time she called, Respondent thereafter stopped returning or answering her calls even though she was calling "constantly." She left him voicemails, sent text messages, and received no response until finally Respondent began text messaging with her in January. At that point, she began communicating with Respondent only by text messaging to document his unresponsiveness in an effort to avoid losing her client, the property owner.
The text messages between Respondent and Ms. Zaunbrecher were among the documents introduced into evidence at the hearing.
Respondent did not meet Ms. Zaunbrecher to accept the eviction filing and $120 filing fee until February 4, 2019. Respondent informed Ms. Zaunbrecher at their meeting that this was his first case. When Respondent advised it would be five days until a court date could be set because he needed to post a five-day notice to vacate, Ms. Zaunbrecher pointed out the provision of the lease containing a waiver of the five-day notice. Respondent nonetheless insisted he would serve the notice five days before providing a hearing date. After multiple failed attempts to obtain a hearing date from Respondent, on February 19, 2019, Ms. Zaunbrecher advised Respondent that the tenants moved out and asked for a refund of her filing fee since nothing had been done in the case. She stated that Respondent said he would refund the fee but still had not done so at the time of the hearing.
By the time Respondent and Ms. Zaunbrecher met, the tenant had failed to pay rent for six consecutive months.
Ms. Zaunbrecher testified that she would have filed other evictions had Respondent been more responsive. This was the first she had filed only because it was the first time he answered her calls. She also explained that his nonresponsiveness impacted her ability to collect rent from other tenants in the same mobile home park where the relevant property was located because other tenants stopped making payments when they learned she was not enforcing rent collection. In order to manage the situation, she resorted to buying back keys, i.e. paying tenants to move out. She testified that both Parish Leasing Company, LLC and the property owner had lost thousands of dollars because of Respondent's failure to perform his duties. Finally, she testified that in her two and a half years’ experience as a property manager she had always been able to obtain a hearing the same day of filing an eviction.
In his sworn statement to the OSC, Respondent explained that he did not attend the justice of the peace training in 2018, after he assumed office, because he did not receive any information about it and did not know he needed to attend. Because of that, he stated he did not know "what to do or how to do it." In addition to Ms. Zaunbrecher's eviction matter, Respondent described a property dispute where he had been contacted by a man claiming that two other persons bought and sold property owned by him. Respondent explained that he tried to get the implicated parties "just to figure it out" and that he "didn't know what to do, honestly." When asked what happened in the case, he said "nothing." Respondent also recalled meeting with Charles Armitage about a potential legal matter. Mr. Armitage told Respondent he had been trying to reach him, but Respondent recalled that Mr. Armitage only left him one voicemail.
The record indicates that Respondent did attend the training in 2019 around the time that he accepted the filing documents from Ms. Zaunbrecher.
Respondent explained he had difficulty finding time to communicate with the potential litigants because of his non-judicial work schedule. From the time he assumed office until approximately two months prior to his sworn statement, Respondent traveled for work as a welder, working 60 to 70 hours a week and traveling from one week to 50 days at a time. He acknowledged receipt of the OSC's inquiry letters in the three underlying file numbers. He failed to respond, he explained, because he was away from home for work and was uncertain what to do.
Although he stopped working for the company shortly before his statement to the OSC, Respondent stated that he intended to go back to work as a welder for financial reasons.
After consideration of the evidence, the Hearing Officer submitted proposed findings of fact and conclusions of law to the Commission. Thereafter, the Commission ordered Respondent to appear before the Commission via videoconference on June 26, 2020. Respondent failed to appear and failed to file a post-hearing brief with the Commission.
Pursuant to Supreme Court Rule XXIII, § 14, the Commission filed a recommendation with this Court on September 2, 2019. Therein, the Commission adopted conclusions of fact, which briefly may be summarized as follows:
Respondent was unresponsive and unavailable to his constable and to citizens within his jurisdiction, including at least one litigant who filed an eviction. Respondent's unavailability to perform his judicial duties was due in part to his work schedule and the travel it required, which demonstrates that he placed his non-judicial work duties ahead of his judicial duties.
For more than four months, Respondent failed to adequately respond to calls and text messages from Ms. Zaunbrecher on behalf of Parish Leasing Company, LLC, which sought to file an eviction. Thereafter, Respondent accepted an eviction petition and filing fee from the company, but he failed to take any action in the matter or return the unearned filing fee, despite repeated requests from Ms. Zaunbrecher that he do so.
The Commission also voted to adopt the Hearing Officer's proposed conclusions of law and made additional conclusions of law, which briefly may be summarized as follows:
Implicit in the articles of the Louisiana Code of Civil Procedure pertaining to eviction procedure is the expectation that a rule to show cause be issued and served. See C.C.P. art. 4731(A) ; C.C.P. art. 4732(A) . This was clearly not done in the case of the eviction filed with Respondent by Parish Leasing Company, LLC. Respondent's acceptance of the filing and failure to take any action was a failure to be faithful and competent in the law; a failure to dispose of judicial matters promptly, efficiently, and fairly; and a failure to diligently discharge the administrative responsibilities of the office of justice of the peace.
C.C.P. art. 4731(A) provides:
If the lessee or occupant fails to comply with the notice to vacate required under this Title, or if the lessee has waived his right to notice to vacate by written waiver contained in the lease, and has lost his right of occupancy for any reason, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner. The rule to show cause shall state the grounds upon which eviction is sought.
C.C.P. art. 4731(A) provides: "The court shall make the rule returnable not earlier than the third day after service thereof, at which time the court shall try the rule and hear any defense which is made."
Respondent's apparent ignorance of certain procedural requirements in eviction proceedings is no excuse for failing to take appropriate action to move the case along. "A justice of the peace is governed by the same constitution and laws that govern all courts and judges of this state and is bound to apply the law as written by the legislature and constructed by the various courts." In re: Justice of Peace Cook , 2005-0783, p. 5 (La. 6/29/05), 906 So. 2d 420, 424. "That he is a layman untrained in the law does not relieve him of his responsibility to follow the rule of law." Id .
Respondent's lack of responsiveness to his constable and citizens within his jurisdiction and his failure to promptly respond to and refund a litigant of his court was a failure to diligently discharge the administrative responsibilities of office, damaged the public's confidence in the integrity and impartiality of the judiciary, was clearly improper and created an appearance of impropriety, and represented a failure to respect and comply with the law. By his conduct, the Commission found respondent violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) of the Code and La. Const. Art. V, § 25 (C).
Respondent's behavior was not simply negligent or the product of his inexperience. Instead, his failure to perform virtually any of his duties negatively impacted and harmed the litigants who tried to appear before him. Furthermore, his repeated promises to take action instead of simply admitting that he never intended to return the fee only add to the damage done to the victims.
By failing to refund the filing fee associated with the attempted eviction, Respondent appears to have, at the very least, misappropriated the fee. Because he did not appear before the Hearing Officer or the Commission, it is impossible to know whether the fee was converted for Respondent's personal use.
Respondent's unresponsiveness extends not only to the victims in this case but to the Hearing Officer and the Commission. Although the record indicates he had adequate notice, he failed to respond to the Notice of Hearing, to participate in the hearing, and to appear before the Commission. His lack of cooperation is indicative of the lack of respect he has for his office, the judiciary, and the litigants who appear before him. The Commission took this lack of cooperation into consideration in deciding the severity of its recommended sanction.
Finally, based on the foregoing conclusions of fact and law, the Commission recommended that Respondent be removed from office, that he reimburse Parish Leasing Company, LLC the unearned filing fee of $120, and also that he reimburse the Commission for its costs, totaling $2,289.71.
In accordance with Louisiana Supreme Court Rule XXIII, Section 14, this case was placed on the summary docket of this Court and set for argument. Respondent once again failed to file a brief on his own behalf. The case was ultimately submitted to this Court on the Commission's brief. LAW AND ANALYSIS
Article V, Section 25(C) of the Constitution of the State of Louisiana (1974) vests this Court with exclusive original jurisdiction in judicial disciplinary proceedings, providing in pertinent part:
On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.
In addition to the foregoing grounds for disciplinary action and in accordance with its Constitutional authority over judicial matters, this Court has adopted the Code of Judicial Conduct, which is binding on all judges. La. Const. Art. V, § 25 (C) ("The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings."). Violations thereof may, without more, serve as a basis for disciplinary action. In re: Hunter , 02-1975, p. 3 (La. 8/19/02), 823 So. 2d 325, 328.
The standard of proof in judicial cases is clear and convincing. In re: Free , 14-1828, p. 18 (La. 12/9/14), 158 So. 3d 771, 782. Clear and convincing evidence is more than a mere preponderance but less than proof beyond a reasonable doubt. Id . In accordance with its original jurisdiction in judicial proceedings, the Court has the power to make determinations of fact based on the evidence and is not bound by, nor required to give any weight to, the findings and recommendations of the Commission. In re: Quirk , 97-1143, p. 3-4 (La. 12/12/97), 705 So. 2d 172, 176. Nevertheless, we find the testimony of Respondent's constable and Ms. Zaunbrecher, the documentary evidence corroborating their testimony, and Respondent's own sworn statement support the Commission's findings of fact and hereby adopt the same.
The Commission is required pursuant to Louisiana Supreme Court Rule XXIII, § 11 to make written findings of fact and conclusions of law. Nevertheless, the Commission is not an adjudicatory body and its recommendation does not bind this Court. In re: Whitaker , 463 So. 2d 1291 (La. 2/25/85).
Specifically, the OSC proved that Respondent was unavailable and unresponsive to his constable and citizens in his jurisdiction, accepted an eviction filing and failed to take any action thereon, and then failed to refund the unearned filing fee. Canon 1 provides in pertinent part that a judge "shall personally observe[ ] high standards of conduct so that the integrity and independence of the judiciary may be preserved." Canon 2A provides: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 3A(1) requires that a judge "be faithful to the law and maintain professional competence in it." Canon 3A(7) provides "[a] judge shall dispose of all judicial matters promptly, efficiently and fairly." Finally, Canon 3B(1) requires that a judge "diligently discharge [his or her] administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration." Respondent's lack of responsiveness to his constable and citizens within his jurisdiction, some of whom sought to file claims in his court, his acceptance of the eviction filing and failure to take any action, and his failure to promptly respond to and refund a litigant of his court, damaged the public's confidence in the integrity and impartiality of the judiciary in violation of Canon 1; was clearly improper and created an appearance of impropriety in violation of Canons 2 and 2A; represented a failure to respect and be competent in the law in violation of 3A(1); was a failure to dispose of judicial matters promptly, efficiently, and fairly in violation of 3A(7); was a failure to diligently discharge the administrative responsibilities of his office and to maintain professional competence in judicial administration in violation of 3B(1).
Regardless of whether he is a layman untrained in the law, "[a] Justice of the Peace is governed by the same constitutions and laws that govern all courts and judges of this state, and is bound to apply the law as written by the legislature and construed by the various courts." In re: Justice of Peace Cook , 2005-0783, p. 5 (La. 6/29/05), 906 So. 2d 420, 424.
Louisiana Code of Civil Procedure art. 4731(A) sets for that a rule to show cause for an eviction "shall state the grounds upon which it is sought." "The Court shall make the rule returnable not earlier than the third day after service thereof, at which time the court shall try the rule and hear any defense which is made." Implicit in the above articles regarding eviction procedure is the expectation that a rule to show cause be issued and served, which was not done in Parish Leasing Company's eviction matter.
The Notice of Hearing and the Commission's recommendation list Canons 2 and 2A separately as though there are two violations. The only section of Canon 2 violated by Respondent is Canon 2A. Since a violation of Canon 2A is a violation of Canon 2, Respondent has violated Canon 2.
Moreover, Respondent's failure to perform his judicial duties and misappropriation of the filing fee constituted "willful misconduct relating to his official duty, willful and persistent failure to perform his duty, [and] persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute" in violation of La. Const. Art. V, § 25 (C).
For the foregoing reasons, we find the evidence clearly and convincingly establishes that Respondent's conduct, or in many cases failure to act, violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) and La. Const. art. V, § 25 (C), as charged.
DISCIPLINE
Article V, Section 25 of the Louisiana Constitution authorizes this Court to censure, suspend, or remove a judge from office for the violations thereof. La. Const. Art. V, § 25 (C). The pertinent question is whether Respondent's misconduct, which was proven by clear and convincing evidence, falls within the standards of conduct for which discipline may be imposed, including removal from office.
This Court has recognized the following non-exclusive list of the types of ethical misconduct for which a recommendation of removal is warranted:
The most severe discipline should be reserved for judges who use their office improperly for personal gain; judges who are consistently abusive and insensitive to parties, witnesses, jurors and attorneys; judges who because of laziness or indifference fail to perform their judicial duties to the best of their ability ; and judges who engage in felonious criminal conduct.
In re: Whitaker , 463 So. 2d 1291, 1303 (La. 1985) (emphasis added). See also In re: King , 2003-1412, p. 20 (La. 10/21/03), 857 So. 2d 432, 466 ("Although the [ In re: Chaisson , 549 So. 2d 259, 266 (La. 1989) ] factors are used in considering the appropriate sanction in non-removal cases ... in cases wherein the judge was removed from office, we have cited the guidelines noted in [ Whitaker ]."); In re: Benge , 09-1617, p. 38 (La. 11/6/09), 24 So. 3d 822, 845 (the Court "has clearly stated that the aforementioned four types of conduct recognized in Whitaker as warranting removal were not intended as an exclusive list of the types of conduct for which a judge can be removed from office.") (internal citations omitted); In re: Huckaby , 95-0041 (La. 5/22/95), 656 So.2d 292, 296-97 (adding to the list of conduct in Whitaker that removal may be warranted where a judge's conduct violates the Canons of the Code of Judicial Conduct and is "persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.").
We have recognized that removal of a duly-elected judge is the most severe sanction this Court may impose and is an "extremely serious undertaking that should be carried out with the utmost care because it disrupts the public's choice for service in the judiciary." In re: Jefferson , 99-1313, p. 17 (La. 1/19/00), 753 So. 2d 181, 194 ; In re: Hunter , 823 So. 2d at 333. However, the Court is vested by the Constitution with "the duty to preserve the integrity of the bench for the benefit of the public." In re: Jefferson , 753 So. 2d at 194. As we recognized in In re: Hughes , 03-3408, p. 62 (La. 4/22/04), 874 So. 2d 746, 788 :
While removal of a judge elected to office by the citizenry is a grave responsibility, and one we would prefer never to have to exercise, that preference must yield when conduct demonstrates, clearly and convincingly, that there has been a complete failure to discharge and perform the duties incumbent on one holding judicial office .
(Emphasis added).
Respondent is the epitome of a judge "who because of laziness or indifference fail[s] to perform [his] judicial duties to the best of [his] ability." Whitaker , 463 So. 2d at 1303. His unavailability and unresponsiveness to citizens seeking to access his court is an utter failure to perform the most basic and essential duties of his office. See Hughes , 874 So. 2d at 788. Respondent's conduct, as well as his inaction, not only violates the Canons cited above but unquestionably, whether due to his incompetence or failure to prioritize his judicial duties, is prejudicial to the administration of justice and brings the judiciary into disrepute, as it casts doubt on the institution's ability to protect the public. See In re: Huckaby , 656 So.2d at 296-97.
In addition to failing to perform his duties and bringing disrepute to the judiciary, the possibility cannot be discounted that by failing to return an unearned fee, Respondent improperly used his office for personal gain, providing additional grounds for his removal from office. See In re: Justice of Peace Laiche , 15-1691, pp. 32-34 (La. 3/15/16), 198 So. 3d 86, 105-107 (removing a justice of the peace for misconduct including, inter alia , overcharging and double-charging litigants and failing to timely refund the money). Although the failure to return the unearned filing fee happened only once, it was in connection with the first and evidently only filing fee Respondent ever received.
Finally, Louisiana Supreme Court Rule XXIII, Section 10 states in pertinent part:
The failure or refusal of a judge to cooperate in an investigation ... may be considered by the Commission in determining whether or not to recommend discipline to this Court and may bear on the severity of discipline actually recommended.
The record shows that Respondent failed to cooperate within the meaning of Louisiana Supreme Court Rule XXIII, § 10 by failing to answer the Notice of Hearing or participate in any meaningful way in the hearing of this matter, failing to respond to communications regarding post-hearing proceedings, failing to appear before the Commission post-hearing, and failing to file a brief with this Court. Respondent had more than adequate notice of these proceedings and made a deliberate choice not to participate. We thus consider Respondent's lack of cooperation when determining the appropriate sanction.
By his own admission, Respondent was unavailable to perform his judicial duties for a substantial period of time, at least in part due to his work schedule and the travel it required, essentially demonstrating that Respondent put his non-judicial work ahead of his judicial duties. He intentionally and willfully avoided the duties and obligations of his office and has shown a blatant disregard not only for the Commission but also for the litigants who sought access to his court, the constable and citizens of his jurisdiction, and the justice system as a whole. Respondent's utter disregard for the integrity of the judiciary, his apparent failure to perform any duties he owed through his office, and his failure to return a litigant's unearned filing fee together constitute conduct so wanton and willfully disrespectful for the office he holds that anything short of removal would be inadequate to protect the citizens in his Ward and the integrity of the judiciary. His similar disregard for the Commission's proceedings is further proof that his behavior is systemic and unlikely to cease if any lesser sanction is imposed.
Louisiana Supreme Court Rule XXIII, Section 22 provides the Commission the right to recover costs, subject to this Court's review. See In re: Boothe , 12-1821, p. 38 (La. 01/29/2013) 110 So. 3d 1002, 1026. The Commission asserts that the OSC incurred $1,484.96 in costs, the Hearing Officer incurred $718.25 in costs, and the Commission incurred $86.50 in costs. We find these costs supported by the record and properly awardable. Accordingly, we order Respondent to reimburse the Commission $2,289.71. Finally, per the recommendation of the Commission, we order Respondent to pay restitution to Parish Leasing Company, LLC, in the amount of $120.00 for the filing fee that he accepted and deposited but did not earn or, alternatively, to provide proof that he previously made such restitution.
DECREE
For reasons set forth herein, we agree with the Commission's recommendation and hereby order the removal of Justice of the Peace Cody King of Ward 6, Morehouse Parish, from office, that he reimburse the Commission the costs incurred in the investigation and prosecution of the case, and further that he pay restitution for an unearned filing fee he failed to return to Parish Leasing Company, LLC. Any rehearing from this order shall be filed in this court no later than noon on Wednesday, November 25, 2020.