Constitution Requires Judge to Recuse When Her Campaign Ad Expressly Condemned Law Firm

So holds a Louisiana Court of Appeal decision from last week.

|The Volokh Conspiracy |

From Daurbigney v. Liberty Personal Ins. Co. (La. Ct. App. May 9):

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

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

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

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

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

Under these circumstances, the court said, Judge Castle had to recuse from cases involving Broussard & David:

Using the objective [Due Process Clause] test articulated by the U.S. Supreme Court, the question at issue now is: Does the tone and tenor of the ad, with Judge Castle's color picture in her judicial robes and cross, and her direct involvement in this campaign ad naming specific plaintiff personal injury attorneys, including Broussard & David, lead the reasonable person to conclude that, "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.'" …

The question really is not whether Judge Castle will tilt her ruling against the client because she still may be resentful of Broussard & David's financial support of her opponent through a PAC. One would like to believe that Judge Castle, who is reputed to be an honest, hardworking and conscientious trial judge, would try to do her best to decide the issues in the Valencia Daurbigney case fairly and impartially. However, under the recent jurisprudential standards on recusals, no "actual bias" need be proven…. As the Supreme Court in Caperton states, "the question is whether, 'under a realistic appraisal of psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'" …

The gravamen of the recusal motion is not that Broussard & David contributed to a PAC supporting Judge Castle's opponent and the defendant seeks recusal on that basis. Rather, the problem in this case is that the ad in question did not directly attack Judge Castle's opponent, but instead singled out specific lawyers who concentrate in the area of plaintiff personal injury litigation, including Broussard & David, for allegedly unethically creating a PAC specifically for the purpose of bypassing campaign limits on contributions to a judicial campaign in an "unethical attempt" to "Pick Our Next Supreme Court Justice." As previously noted, the contributions by PACs are neither illegal nor unethical. The ad in question chills and challenges the legal ability of lawyers or anyone to contribute to judicial campaigns through PACs under the First Amendment, contributions lawful since Citizens United and its progeny were decided….

Public trust and confidence in the judiciary is already suffering. Looking at this case objectively, given the optics, the tone, timing and wording of the ad, it is implausible that this client, or any reasonable client under the circumstances, could have trust and confidence in the impartiality of the trial judge when the sitting trial judge hearing her case has published such an ad directly naming and attacking her attorneys….

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  1. Some fairly sloppy writing there: the expenditures by independent groups didn’t cost the campaigns anything.

  2. Ambulance chasing has probably done more to bring the legal profession into disrepute than any other “legal” activity, not to mention the direct adverse effect on the auto ins. premium paying public. Seems to me Judge Castle is especially qualified to rule on this case.

    1. Partisan much? Good grief.

  3. “Public trust and confidence in the judiciary is already suffering.”

    Let’s be fair…I bet if we compared the judiciary in any state to the same state’s legislature, the judiciary would come out smelling like roses.

    1. Compared in terms of popularity at least.

    2. Public trust and confidence in almost /all/ institutions is suffering. So say the data. Eg., in 2018 the General Social Survey found that only 28% who gave an opinion had a “great deal of confidence” in the Supreme Court. That’s much better than Congress or the press, by the way.

  4. Tl;dr, judges shouldn’t be elected, and they also shouldn’t decide on their own recusal requests. To quote Lord Coke in Dr. Bonham’s case:

    So if any Act of Parliament giveth to any to hold, or to have Conusans of Pleas of all manner of pleas arising before him within his Mannor of D., yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suae rei esse judicem.

  5. Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.”

    Interesting that this objective standard requires a judge to recuse herself when hearing cases from a law firm she had publicly criticized for donating to her opponent, but not to a judge who may have actually received donations from such a law firm.

    One would think that public perception of judicial bias would be greatest when the law firm is literally giving money to the judge.

    1. Why does the opinion use “Objectively speaking,…” to introduce a criterion which is manifestly subjective, not objective?

      1. Judges like to pretend they’re not using a subjective standard. See, it’s right there in the opinion.

  6. “but not to a judge who may have actually received donations from such a law firm.”

    To be fair, the judge from this particular case and the candidate who received the donation criticized were opponents in the same election, so the donation went to someone who IS NOT a judge today.

    Given this, I don’t see any reason for the COA in this case to discuss the got donation end of the mandatory recusal issue.

    I’m not a lawyer and I don’t follow Louisiana case law. If a Louisiana COA has already decided that issue in the opposite direction, can you cite the case where that was decided?

    1. To be fair, the judge from this particular case and the candidate who received the donation criticized were opponents in the same election, so the donation went to someone who IS NOT a judge today.

      Both of the candidates were judges at the time of the election. The candidate who received the donation won the election and is now a justice on the Louisiana Supreme Court. The judge who paid for the ad lost the election and is therefore still a trial court judge.

      1. Still no reason for the appeal court to discuss the got donation recusal issue on this specific decision.

        1. I agree that the issue wasn’t before the appeal court and shouldn’t have been discussed. However, I am not aware of any cases where a judge actually recused himself – or was required to recuse himself – from a case involving an attorney or firm who donated to his election.

          1. However, I am not aware of any cases where a judge actually recused himself – or was required to recuse himself – from a case involving an attorney or firm who donated to his election.

            Well, I mean, Caperton v. Massey is the obvious one..

  7. Louisiana is the Banana Republic of this nation. Or your randomly chosen Sub-Saharan kleptocracy would be more accurate. If you’re not familiar with the state, however bad you think it is, it’s worse.

    1. Ah yes. It’s the state where — when David Duke was running against Edwin Edwards for governor, a prominent bumper sticker read: “Vote for the crook. It’s important!” Happily Edwards won. Later he had to go to prison.

  8. 1. Seems like a reasonable bright-line rule.
    2. Wish the court would have added dicta to the effect of, “Recusal also would have been required in any case involving lawyers or law firms who made substantial contributions (directly OR indirectly, via PACs) to a judge in the most recent election.”
    3. Surprised the court did not spend more time talking about recusal if there is the *appearance* of bias. I guess it did not, since there was sufficiently evidence of actual bias.
    4. I do not get why ethical judges do not recuse themselves more often in these types of cases. I mean, it’s not like judges are paid ‘by the case.’ It’s my impression that judges bend over backwards to not recuse themselves, rather than erring on the side of caution and recusing if it’s anything approaching a close call. Due to ego? Pressure from presiding judges? Something else???

  9. It should also require recusal in criminal cases where the judge’s campaign ads extol police virtues and/or brags that their candidacy is “endorsed by law enforcement.” The quid pro quo of that endorsement frequently rears its ugly head in substandard search warrant issuances and doctrinally suspect evidence rulings against the defense, inter multa alia.

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