Griffith v. Louisiana State et al

Filing 580

ORDER AND REASONS denying 563 Motion to Disqualify Judge. Signed by Judge Jay C. Zainey. (Reference: All Cases)(bwn) (Additional attachment(s) added on 10/28/2014: # 1 Attachment) (bwn).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMMY GRIFFITH & STACEY
GUICHARD

CIVIL ACTION

VERSUS

NO: 11-245 C/W 11-535

CITY OF NEW ORLEANS, ET AL.

SECTION: "A" (1)

ORDER AND REASONS
[REF: All cases]
Plaintiffs Tammy Griffith and Stacey Guichard have filed a Motion to Disqualify
(28 U.S.C. § 455; 28 U.S.C. § 144) (Rec. Doc. 563) seeking to have the Court disqualify
itself from this matter on two grounds. First, that the Court's impartiality might reasonably be
questioned because it reversed the magistrate judge's ruling pertaining to defendant Bell's
medical records. And second, that the Court failed to disclose that Ms. Shelley Aucoin, the
Court's former daughter-in-law, is a lawyer with the State of Louisiana Attorney General's
Office, thereby triggering mandatory disqualification.
Title 28, § 144 states:
Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such judge
shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days before the beginning of the term at
which the proceeding is to be heard, or good cause shall be shown for failure to file
it within such time. A party may file only one such affidavit in any case. It shall be
accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144.
Title 28, § 455 states in relevant part:

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Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.
He shall also disqualify himself in the following circumstances:

He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a
person:
Is known by the judge to have an interest
that could be substantially affected by the
outcome of the proceeding
28 U.S.C. § 455(a), (b)(5)(iii).
Under both § 455 and § 144, the party seeking disqualification must present facts
tending to show that disqualification is appropriate. Hoover v. Lindsey, No. 01-2926, 2002
WL 31246745, at *1 (E.D. La. Oct. 4, 2002). The standard for judicial disqualification under §
455 is whether a reasonable person, with full knowledge of all the circumstances, would harbor
doubts about the judge's impartiality. Lyon v. Wise Carter Child & Caraway, No. 10-185, 2013
WL 139335, at *1 (S. D. Miss. Jan. 10, 2013) (quoting Matassarin v. Lynch, 174 F.3d 549, 571
(5th Cir. 1999)). The standard for bias is an objective one "with reference to the well-informed,
thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious
person that the objective standard is currently established." Id. (quoting Andrade v.
Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003)). The facts and reasons set out in the § 144
affidavit "must give fair support to the charge of a bent mind that may prevent or impede
impartiality of judgment." Id. (quoting Parrish v. Bd. of Comm'rs, 524 F.2d 98, 100 (5th Cir.
1975)). Those facts must be material, stated with particularity, show that the bias is personal
rather than judicial in nature, and if true, would convince a reasonable person that bias exists."
Id. (citing United States v. Merkt, 794 F.2d 950, 960 n.9 (5th Cir. 1986)). Like a motion for
disqualification filed under § 455, motions pursuant to § 144 are resolved "by applying the

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reasonable man standard to the facts and reasons stated in the affidavit." Id. (citing Parish,
524 F.2d at 100).
Further, it is well-established that adverse judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion. Id. (quoting Andrade, 338 F.3d at 455); Dantzler
v. Tangipahoa Parish Sch. Bd., No. 05-147, 2005 WL 1501420 (E. D. La. June 20, 2005). And
a federal judge's duty to preside where not disqualified is equally as strong as the duty not to sit
where disqualified. Lyon, 2013 WL 139335, at *2 (quoting Sensley v. Albritton, 385 F.3d 591,
598-99 (5th Cir. 2004)).
Finally, the challenged judge is not required to transfer a disqualification motion to
another judge for decision. Dantzler, 2005 WL 1501420, at *1 (citing Chitimacha Tribe of La.
v. Harry L. Laws Co., 690 F.2d 1157, 1162 (5th Cir. 1982)). The challenged judge is most
familiar with the alleged bias or conflict of interest, and is therefore in the best position to
protect the nonmoving parties from dilatory tactics. Id. On the other hand, if the procedural
requirements for § 144 are satisfied, then the presiding judge cannot pass on the truth of the
matters alleged. Davis v. Bd. of School Commr's, 517 F.2d 1044, 1051 (5th Cir. 1975) (citing
Berger v. United States, 255 U.S. 22 (1921); United States v. Roca-Alvarez, 451 F.2d 843 (5th
Cir. 1971); United States v. Townsend, 478 F.2d 1072 (3rd Cir. 1973)).
Disqualification Based on Bell's Medical Records
The motion is DENIED as to this ground for disqualification under both § 144 and §
455. Section 144 requires a timely motion to disqualify. The oral hearing on Bell's motion
challenging the magistrate judge's ruling took place on August 26, 2014, at which time the
Court ruled from the bench with oral reasons. (Rec. Doc. 462). Plaintiffs do not deny that they
knew at that time of the oral hearing that the Court had been provided a copy of the medical
records at issue. On September 30, 2014, the Court denied Plaintiffs' motion for written
reasons referring Plaintiffs' counsel to its reasons given in open court. (Rec. Docs. 516 & 534).

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Plaintiffs nonetheless waited until October 26, 2014, which is not only one week before trial is
scheduled to start but is also after the Court issued rulings on numerous motions in limine
that are adverse to Plaintiffs. The timing of the § 144 disqualification motion vis à vis Bell's
records and the lack of any facts to support a personal bias by the Court in favor of Bell
demonstrates that Plaintiffs' complaints related to Bell's medical records are strictly judicial in
nature, not personal. The affidavit that Griffith submitted in support of § 144 disqualification
with respect to Bell's medical records is therefore legally insufficient.
With respect to § 455, Plaintiffs have failed to demonstrate that the Court's impartiality
might reasonably be questioned. Bell specifically indicated in his memorandum in support of
his motion challenging the magistrate's ruling that a copy of the medical records would be
provided to the Court. (Rec. Doc. 439-1 at 8 n.23). A copy of the records was delivered to
chambers on July 7, 2014, and the transmittal letter indicates a copy to Plaintiffs' counsel. (See
Attachment). The Court never had reason to believe that Plaintiffs' counsel was not copied on
the transmittal as indicated, but Bell's opposition filed today indicates that through
inadvertence that did not occur. (Rec. Doc. 570). Again, during the oral hearing it was clear
that the Court had in its possession an in camera copy of the medical records, and Plaintiffs
never questioned how the Court obtained that copy because common sense would clearly
suggest that Bell's counsel provided the copy to the Court at some point.
In their reply memorandum (Rec. Doc. 571), Plaintiffs dispute Bell's contentions of
inadvertence but that dispute is not material to whether this Court's impartiality might
reasonably be questioned. The Court was always under the impression that Plaintiffs had been
copied on Bell's transmittal letter, and therefore the Court did not appreciate Plaintiffs' motion
for written reasons as suggesting otherwise. Again, Plaintiffs never raised the issue at the oral
hearing or at the pretrial conference—the most obvious times to do so. Plaintiffs' sole basis for
questioning the Court's impartiality is their disagreement with the ruling regarding the medical

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records but this cannot provide a basis for recusal. Plaintiffs' suggestion that something
invidious must have occurred because Bell provided the Court an in camera copy of the records
in the absence of an express order to do so is not only baseless, but assumes that Bell's counsel
would have been foolish enough to seek a reversal of the magistrate judge's ruling without
providing the Court a copy of the documents that formed the basis of the appeal.
Disqualification Based Undisclosed Relationship
According to plaintiff Tammy Griffith's affidavit, Ms. Shelly Aucoin Zainey is employed
with the State Attorney General's Office. The Attorney General also represents Barbara Edin of
the Judiciary Commission. Ms. Edin is the person that Plaintiffs contacted at the Judiciary
Commission to report David Bell's conduct. Griffith complains that the Court has repeatedly
ruled on material evidentiary matters that involve Barbara Edin and the Judiciary
Commission, who are again represented by the Attorney General's Office. The Court never
disclosed that its daughter-in-law works at the Attorney General's Office. (Rec. Doc. 563-2).
Plaintiffs clearly allege a personal as opposed to judicial bias on the part of the Court in
light of Ms. Aucoin's employment with the State Attorney General's Office.1 Because Plaintiffs
have invoked § 144, the Court must accept the facts alleged in Plaintiffs' affidavit as true even
where the Court has personal knowledge to the contrary.2 Danielson v. Winnfield Funeral
Home, 634 F,. Supp. 1110, 1112-13 (E.D. La. 1986). But the mere filing of a § 144 motion and
affidavit does not mandate recusal. Id. A motion to recuse must be strictly construed for form,
timeliness, and sufficiency in order to guard against the danger of frivolous attacks on the
orderly process of justice. Id. The determination of the legal sufficiency of the affidavit is a

Plaintiffs actually do claim judicial bias but that is not a legally sufficient basis to
support disqualification.
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So for instance, the Court must ignore the factual inaccuracy behind the statement that
its daughter-in-law works at the Attorney General's office. In fact, the Court's son's brief
marriage to Ms. Aucoin ended in a final judgment of divorce on July 8, 2013.
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matter addressed to the sound discretion of the trial court . Id. An analysis of the sufficiency of
the affidavit must begin from the proposition that the trial judge is presumed to be impartial
and to have sufficient integrity to conduct an error free trial. United States v. Smith, No.95153, 1995 WL 555578, at *2 (E.D. La. Sept. 19, 1995). The burden on the mover to show that the
facts are otherwise is "substantial." Id. (citing Danielson, 634 F. Supp. at 1114). To be legally
sufficient, the affidavit must meet, among other requirements, the following test: 1) the facts
must be material and stated with particularity, 2) the facts must be such that, if true they would
convince a reasonable person that a bias exists, and 3) the facts must show that the bias if
personal, as opposed to judicial, in nature. Smith, 1995 WL 555578, at *3 (citing United States
v. Miranne, 688 F.2d 980, 985 (5th Cir. 1982)).
The Court is persuaded that the affidavit fails to present a legally sufficient basis for
disqualification because the facts taken as true would not convince a reasonable person that a
personal bias exists because of Ms. Aucoin's employment with the State Attorney General's
Office. As far as Bell is concerned, he faces personal liability and he is represented by private
attorneys who are not affiliated with the State Attorney General's Office.
The assertions with respect to the OPJC/State are even less convincing when one
considers that it was this Court that reinstated the claims against the OPJC/State long after
those claims had been dismissed by a prior judge. No reasonable person would be convinced
that the same judge that brought the OPJC/State back into the case (over the vigorous protests
of that party) did so because it was biased in favor of that party.
Further, the assertion that Ms. Aucoin has an interest that could be "substantially
affected" by the outcome of this case, whether with respect to the outcome against the
OPJC/State or Barbara Edin's status as a witness, is bereft of factual support or any cogent
explanation for that assertion in light of the clear law in this area. The State Attorney General's
Office is not a private law firm but rather represents a sovereign similar to the situation where

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a judge's child is employed by the United States Attorney's Office in the district. The judge need
not recuse himself from cases involving the Government provided the child does not appear in,
nor perform work on, any cases assigned to the judge. United States v. Edwards, 39 F. Supp.
2d 692, 715 (M.D. La. 1999); see also Committee on Codes of Conduct Advisory Op. No. 38. An
appearance of impropriety does not arise merely because the child is employed by the same
governmental attorney's office that appears before the judge.
In this case there is no allegation that Ms. Aucoin has been involved in this litigation in
any manner whatsoever, or that she even works in the same geographic location as the
attorneys who have appeared on behalf of the Judiciary Commission or the OPJC/State.
Plaintiffs' affidavit is legally insufficient to support disqualification based on Ms. Aucoin's
employment with the State Attorney General's Office, even accepting the factual errors in the
affidavit as true. Plaintiffs are making a blatant attempt to circumvent the preclusion on
disqualification for judicial bias (in light of their disagreement with the Court's recent adverse
evidentiary rulings) but they are relying on a legally frivolous basis to do so. The motion to
disqualify is therefore DENIED in all respects.
October 28, 2014
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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