Relator, Entergy New Orleans, Inc., seeks expedited supervisory review of the district courts May 14, 2024 judgment, which denied Relators motion for recusal. In its recusal motion, Relator alleged that on Monday, May 13, 2024, the district court judge, sua sponte and off the record, solicited information regarding settlement negotiations between the parties. According to Relator, opposing counsel disclosed the amount of Relators settlement offer within the hearing of the judge, and the judge inquired as to the amount of Respondents’, Peter Adams et al., counteroffer. Relator further alleged that, pursuant to La. C.C.P. art. 151(B), the district court judges solicitation and the subsequent disclosure of Relators settlement offer amount created a substantial and objective basis that would prevent the district court from conducting the remainder of the trial in a fair and impartial manner. Following argument of counsel, the district court denied the motion.
The issue before this Court is not whether the district courts actions amounted to a recusable offense. Rather, the issue is whether the district court followed the mandates set forth in La. C.C.P. art. 154. Louisiana Civil Code of Procedure article 154 provides:
A. A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusal under Article 151. This motion shall be filed no later than thirty days after discovery of the facts constituting the ground upon which the motion is based, but in all cases prior to the scheduling of the matter for trial. In the event that the facts constituting the ground upon which the motion to recuse is based occur after the matter is scheduled for trial or the party moving for recusal could not, in the exercise of due diligence, have discovered such facts, the motion to recuse shall be filed immediately after such facts occur or are discovered.
B. If the motion to recuse sets forth a ground for recusal under Article 151, not later than seven days after the judges receipt of the motion from the clerk of court, the judge shall either recuse himself or make a written request to the supreme court for the appointment of an ad hoc judge as provided in Article 155.
C. If the motion to recuse is not timely filed in accordance with Paragraph A of this Article or fails to set forth a ground for recusal under Article 151, the judge may deny the motion without the appointment of an ad hoc judge or a hearing but shall provide written reasons for the denial.
Louisiana Civil Code of Procedure article 151(B) provides:
A judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.
In its reasons for judgment, the district court found that Relators motion to recuse did not state a substantial and objective basis for recusal; thus, the court held that there were no mandatory grounds for recusal as contemplated by La. C.C.P. art. 151(B). Rather, the district court judge followed the procedures delineated in La. C.C.P. art. 154(C). We find this to be in error.
Our review of Relators motion for recusal indicates that Relator specifically alleged that the district courts inquiry into prior settlement offers during the middle of a bench trial implicated judicial misconduct and potential violations of La. C.E. art. 408.
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Without determining the merits of the allegations, we find that these allegations raise legitimate questions as to whether there exists a substantial and objective basis for recusal under La. C.C.P. art. 151(B). Thus, once the district court judge was in receipt of Relators motion setting forth these specific grounds for recusal, the judge was left with seven days to make but one of two choices, pursuant to La. C.C.P. art. 154(B): (1) recuse herself; or (2) make a written request to the Supreme Court for the appointment of an ad hoc judge.
We are, however, declining to establish any sort of bright line rule concerning the substance of allegations that would trigger the application of La. C.C.P. art. 154(B). We find that, as drafted, Articles 151 and 154 call for a limited factual inquiry on a case-by-case basis. For these reasons, we grant Relators writ and we remand this matter to the district court to follow the guidelines set forth in La. C.C.P. art 154(B). The stay issued by this Court is hereby lifted.
I respectfully dissent and would deny the writ finding the trial court was not required to make a written request to the Louisiana Supreme Court for the appointment of an ad hoc judge. I find that the trial courts denial and issuance of reasons under La. C.C. P. art. 154(C) negates the referral to the Louisiana Supreme Court. Rather, we should review this matter under our supervisory jurisdiction. In Arvie v. Washington, unpub., 2023-563 (La.App. 3 Cir. 5/1/24), ___So.3d___, 2024 WL 1896193, Mr. Arvie sought to recuse the entire Court of Appeal, Third Circuit, citing La. C.C.P. art 151(B) as his grounds for recusal. He also requested the appointment of a judge ad hoc. The Third Circuit, en banc, issued an order and reasons denying Mr. Arvies motion stating that no substantial or objective basis under La. C.C.P. art 151 exists. Mr. Arvie sought writs to the Louisiana Supreme Court seeking review of the appellate courts denial and refusal to request the appointment of an ad hoc judge. In a 6-0 decision, the Supreme Court denied writs. Arvie v. Washington, 2023-01482 (La. 1/17/24), 377 So.3d 240.
In the case sub judice, the trial court availed itself of the provisions in La. C.C.P. art 154(C) and issued written reasons, stating that it did not find the allegations in the motion amounted to a “substantial objective basis” to justify recusal. Jurisprudence has recognized that “where the motion to recuse does not set forth affirmative allegations of fact stating valid grounds for recusation, the trial judge may overrule the motion without referring the matter to another judge.” State v. Williams, 601 So.2d 1374, 1375 (La. 1992) (citations omitted). Thus, since the trial court made a finding that the motion fails to set forth a ground for recusal under La. C.C.P. art. 151, the only issue for this Court is whether such finding was an abuse of the trial courts discretion. I would find the trial court did not err. Accordingly, I would deny the writ.
I concur because I agree with the decision to grant Relators writ application, remand this matter to the trial court, and instruct the trial court to follow the procedure outlined in La. C.C.P. art. 154(B) under the circumstances presented herein; but I write separately for the following reasons.
According to La. C.C.P. art. 154(B), “if [a] motion to recuse sets forth a ground for recusal under [La. C.C.P. art.] 151, not later than seven days after the judges receipt of the motion from the clerk of court, the judge shall either recuse himself or make a written request to the supreme court for the appointment of an ad hoc judge.” However, La. C.C.P. art. 154(C) provides that “[i]f the motion to recuse ․ fails to set forth a ground for recusal under La. C.C.P. art. 151, the judge may deny the motion without the appointment of an ad hoc judge or a hearing but shall provide written reasons for the denial.” In my opinion, the inherent problem with the present version of La. C.C.P. art. 154 is its ambiguity as to when a motion has sufficiently set forth a ground for recusal under La. C.C.P. art. 151 so as to necessitate recusal or appointment of an ad hoc under Paragraph B versus when the motion to recuse has failed to set forth a ground for recusal under La. C.C.P. art. 151, such that the trial judge may deny the motion without the appointment of an ad hoc judge or a hearing under Paragraph C. Moreover, La. C.C.P. art. 154 is unclear as to whether and to what degree the judge who is the subject of the motion to recuse should consider the merits of the allegations in the motion before determining which La. C.C.P. art. 154 procedure to follow (i.e., recusal or request for appointment of ad hoc per Paragraph B instead of a denial with reasons per Paragraph C).
That is, La. C.C.P. art. 154 does not specify what constitutes setting forth a ground for recusal under La. C.C.P. art. 151. On the one hand, if the motion to recuse merely lists one of the La. C.C.P. art. 151 grounds without providing factual bases in support, is this insufficient to trigger La. C.C.P. art. 154(B)’s requirement to recuse or request the appointment of an ad hoc? On the other hand, if the motion to recuse lists one of the La. C.C.P. art. 151 grounds and provides factual bases in support, then is this sufficient to trigger La. C.C.P. art. 154(B)’s requirement to recuse or request the appointment of an ad hoc? Even if the motion to recuse provides factual bases in support of its La. C.C.P. art. 151 contention, then is the judge who is the subject of the motion to recuse the person who should determine whether these factual bases are meritorious under the grounds listed in La. C.C.P. art. 151 so as to trigger La. C.C.P. art. 154(B)? What if the motion to recuse does not specifically cite to one of the grounds listed in La. C.C.P. art. 151 but the assertions in the motion nonetheless implicate one of the grounds? And, again, is the judge who is the subject of the motion to recuse necessarily the person who should determine whether the allegations fall under one of the La. C.C.P. art. 151 grounds?
I believe the protracted procedural history of the case cited by the dissent emphasizes this problem. In Arvie v. Washington, Hubert Arvie (“Mr. Arvie”) filed three motions to recuse; and, as described by the Louisiana Third Circuit Court of Appeal (“Third Circuit”), the first of those motions “alleg[ed] that, per [La. C.C.P.] art. 151(B),[
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] the entire court was biased against him due to the actions and inactions of multiple judges of this court, referencing both retired judges and current judges.” 2023-563, p. 8 (La. App. 3 Cir. 5/1/24), ___ So.3d ___, ___, 2024 WL 1896193, at *3. In an October 9, 2023 order denying that motion the Third Circuit concluded that none of the alleged facts stated a ground for recusal but did not elaborate further as to why Mr. Arvies allegations about the members of the court did not fall under La. C.C.P. art. 151. Id. Based on the Third Circuit arriving at that conclusion without stating specific reasons why, my concern is that La. C.C.P. art. 154(C)’s language about “the motion to recuse fails to set forth a ground for recusal under Article 151,” could serve as a catchall by which judges who are the subject of a motion to recuse can deny the motion. Of note, the Third Circuits October 9, 2023 order also stated that some of the facts alleged in Mr. Arvies motion to recuse merely repeated allegations that an ad hoc judge, Judge Charles Porter, had already concluded were not reasonable grounds for recusal in another appeal by Mr. Porter under the Third Circuits docket number 2022-0670 Hubert Arvie v. Geico Casualty, et al.
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Thus, the Third Circuits October 9, 2023 order demonstrates that Mr. Arvie set forth grounds for recusal under La. C.C.P. art. 151 so as to necessitate the appointment of an ad hoc in his appeal docketed as 2022-0670; but it is unclear from the Third Circuits order what exactly Mr. Arvie alleged in that motion to recuse that constituted grounds for recusal under La. C.C.P. art. 151 so as to trigger La. C.C.P. art. 154(B)’s request for appointment of an ad hoc.
I also point to Recreation and Park Commission for Parish of East Baton Rouge v. Gautreaux, 2023-0220 (La. App. 1 Cir. 6/20/23), 2023 WL 4072094. In that writ opinion, the Louisiana First Circuit Court of Appeal (“First Circuit”) granted the writ and remanded the matter to the trial court to request the appointment of an ad hoc because the “motion set forth grounds of recusal under [La. C.C.P.] art. 151(B), asserting a substantial and objective basis for recusal based on [the trial judge]’s previous service as a board member on the defendants board.” However, in arriving at its decision that the recusal motion implicated La. C.C.P. art. 151(B), the First Circuit did not expound on whether the trial court judge should have requested the appointment of an ad hoc based on the mere allegation alone or if that decision should have been made because of the specifics of that case, e.g., if the trial court judge had been an active board member for many years. To this end, I point to Anderson v. Dean, wherein the Louisiana Fifth Circuit Court of Appeal stated that “whether the requirements of” the ground for recusal under La. C.C.P. art. 151(B) “are met will necessarily vary to some degree depending on the facts and circumstances of each case: the conduct complained of and the relationships and interests involved.” 2022-233, p. 18 (La. App. 5 Cir. 7/25/22), 346 So.3d 356, 369. The Fifth Circuit further opined that “a judges decision” in determining whether recusal is necessary “should be guided by the twin imperative duties of a judge: to try the case fairly and impartially on the one hand, and on the other to promote public confidence in the integrity and impartiality of the judiciary.” Id. Thus, the Fifth Circuits statements indicate a stance that the judge who is the subject of the motion to recuse should, at least to a certain degree, consider the facts and circumstances presented.
Considering the foregoing, I believe that La. C.C.P. art. 154 should more clearly articulate when a motion to recuse has sufficiently set forth a ground for recusal under La. C.C.P. art. 151 so as to necessitate recusal or appointment of an ad hoc under Paragraph B versus when the motion to recuse has failed to set forth a ground for recusal under La. C.C.P. art. 151, such that the trial judge may deny the motion without the appointment of an ad hoc judge or a hearing under Paragraph C. I further believe that La. C.C.P. art. 154 needs to be more precise as to whether and to what degree the judge who is the subject of the motion to recuse should consider the merits of the allegations in the motion before determining which La. C.C.P. art. 154 procedure to follow (i.e., recusal or request for appointment of ad hoc per Paragraph B instead of a denial with reasons per Paragraph C).
FOOTNOTES
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. Louisiana Code of Evidence Article 408 provides, in pertinent part:A. Civil cases. In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This Article does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations. This Article also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
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. Louisiana Code of Civil Procedure Article 151(B) states that “[a] judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.”
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. This information comes from the Third Circuits October 9, 2023 order.
JUDGE PAULA A. BROWN
DISSENTS WITH REASONS
JUDGE TIFFANY GAUTIER CHASE
CONCURS WITH REASONS
JUDGE DALE N. ATKINS
JUDGE RACHAEL D. JOHNSON
JUDGE NAKISHA ERVIN-KNOTT