In Re: Justice of the Peace Mary Foret Second Justice of the Peace Court Lafourche Parish State of Louisiana , 144 So. 3d 1028 ( 2014 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #029
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 23rd day of May, 2014, are as follows:
PER CURIAM:
2014-O-0526 IN RE: JUSTICE OF THE PEA CE MARY F ORET SECOND JUSTICE OF THE
PEACE COURT LAFOURCHE PARISH STATE OF LOUISIANA
For the reasons assigned, it is ordered that Justice of the Peace
Mary Foret, Second Justice of the Peace Court, Lafourche Parish ,
State of Louisiana, be suspended from office for a period of
sixty days, without pay. Further, pursuant to Supreme Court Rule
XXIII, § 22, we cast Justice of t he Peace Foret w ith costs
incurred in the investigation and prosecution of this proceeding
in the amount of $196.00.
WEIMER, J., recused.
05/23/14
SUPREME COURT OF LOUISIANA
NO. 14-O-0526
IN RE: JUSTICE OF THE PEACE MARY FORET
ON RECOMMENDATION FOR DISCIPLINE
FROM THE JUDICIARY COMMISSION OF LOUISIANA
PER CURIAM*
This matter comes before the court on the recommendation of the Judiciary
Commission of Louisiana (“Commission”), pursuant to La. Const. art. V, § 25(C),
that respondent, Justice of the Peace Mary Foret, Second Justice of the Peace
Court, Lafourche Parish, State of Louisiana, be suspended with pay for sixty days
and ordered to pay the costs of the prosecution of these proceedings. For the
reasons that follow, we suspend respondent without pay for sixty days and order
her to pay costs.
UNDERLYING FACTS
The facts of this matter are not in dispute, having been stipulated to by the
parties. The Formal Charge against respondent arises out of a small claims case in
her court brought by Norris and Gloria Comeaux against Charles and Carol
LeBlanc. Both prior to and after the filing of the lawsuit, respondent engaged in
numerous ex parte communications with the parties concerning the substantive
issues in the case. These ex parte communications were conducted by respondent
directly as well as through her constable, Dwain LeBouef. Respondent also
engaged in improper independent investigation into the background of the case by
having Constable LeBouef obtain the police report of an altercation between Mr.
*
Weimer, J. recused.
Comeaux and Mr. LeBlanc.1 Despite these ex parte communications and
independent fact-finding about the case, respondent did not recuse herself.
When the Comeaux case was set for hearing, respondent knowingly allowed
Constable LeBouef to participate in the hearing to a significant extent.2
Specifically, respondent permitted Constable LeBouef to question the parties and a
witness, determine the order of the proceedings, threaten to hold the litigants in
contempt, and comment at length on his opinion of Mr. LeBlanc’s case, including
making points of fact not raised by Mr. Comeaux and about which there was no
testimony or evidence. Respondent also allowed Constable LeBouef to participate
in her decision-making process by asking him at the conclusion of the hearing what
he thought of the case.
PROCEEDINGS BEFORE THE COMMISSION
The LeBlancs filed a complaint against respondent with the Commission. In
addition, the Office of Special Counsel (“OSC”) received a written report from the
Lafourche Parish District Attorney concerning the issues raised in the complaint.
Following an investigation, the Commission filed a Formal Charge against
respondent, alleging that she engaged in improper ex parte communications with
the parties in a case before her, engaged in improper independent investigation into
the background of the case, failed to recuse herself, and improperly delegated her
judicial duties to her constable, in violation of Canons 1, 2A, 2B, 3A(1), 3A(4),
3A(6), 3A(7), and 3C of the Code of Judicial Conduct and La. Const. art. V, §
25(C).
1
This was not the only case in which respondent independently obtained a police report; she
made a practice of doing so in 90% of her cases.
2
According to the joint stipulations of fact, the Comeaux case was not an isolated occurrence in
terms of the participation by Constable LeBouef. Rather, respondent frequently allowed
Constable LeBouef to “assist” with hearings in her court to an impermissible extent.
2
Respondent and the OSC then entered into a stipulation of facts in which
respondent admitted all of the factual allegations contained in the Formal Charge.
The parties also entered into a stipulation of law in which respondent admitted that
her conduct violated the Code of Judicial Conduct and the Louisiana Constitution
as charged.3 The Commission agreed to dispense with a hearing and accepted the
stipulations subject to further questioning of respondent at a Commission meeting.
FINDINGS OF THE COMMISSION
Applying the factors set forth in In re: Chaisson, 549 So. 2d 259 (La.
1989),4 the Commission concluded as follows:
(a) Although respondent has no prior disciplinary history before the
Commission or the Supreme Court, the conduct at issue in this case was not an
isolated instance. Respondent made a practice of independently obtaining police
reports in 90% of her cases. Respondent frequently allowed Constable LeBouef to
“assist” with hearings in her court to an impermissible extent, including regularly
allowing him to question witnesses at hearings, especially in criminal matters.
3
Although the parties stipulated to the facts and legal conclusions, they were unable to agree
upon a recommended penalty. Prior to the Commission hearing, the OSC filed a memorandum
in which it argued that the appropriate sanction in this case is removal. For her part, respondent
submitted a letter to the Commission in which she opposed removal but did not address what
sanction should be recommended by the Commission to this court, if any. In its
recommendation, the Commission observed that although respondent’s conduct is serious, it was
not felt “to be the type of conduct for which a recommendation of removal is warranted.”
4
In Chaisson, this court set forth a non-exclusive list of factors which may be considered in
imposing discipline against a judge. These factors are as follows:
(a) whether the misconduct is an isolated instance or evidenced a
pattern of conduct; (b) the nature, extent and frequency of
occurrence of the acts of misconduct; (c) whether the misconduct
occurred in or out of the courtroom; (d) whether the misconduct
occurred in the judge’s official capacity or in his private life; (e)
whether the judge has acknowledged or recognized that the acts
occurred; (f) whether the judge has evidenced an effort to change
or modify his conduct; (g) the length of service on the bench; (h)
whether there have been prior complaints about this judge; (i) the
effect the misconduct has upon the integrity of and respect for the
judiciary; and (j) the extent to which the judge exploited his
position to satisfy his personal desires.
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(b) The misconduct involved here is quite serious. Respondent
improperly delegated her judicial authority to Constable LeBouef by allowing him
to participate to a significant extent in conducting the hearing in the Comeaux case
with her full knowledge and approval, including allowing him to: question a
witness; determine the order of the proceedings; comment at length on his opinion
of the case, which included making points of fact about which there was no
testimony or evidence; threaten to hold the parties in contempt of court; and
participate in the decision-making process both in front of the parties and in
private. Respondent frequently allowed Constable LeBouef to “assist” with court
hearings to an impermissible extent.
Respondent engaged in ex parte communications before the hearing with
both parties regarding the substantive issues in the case. Further, respondent
conducted an improper investigation into the facts of the case by obtaining a copy
of the police report filed by Mr. LeBlanc against Mr. Comeaux. Despite such
independent investigation and ex parte communications, respondent failed to
recuse herself from the case. She regularly conducted improper independent
investigations in her cases by obtaining copies of police reports, if they existed.
(c) Respondent’s improper delegation of her judicial authority to
Constable LeBouef occurred in the courtroom. Respondent’s misconduct in
engaging in improper ex parte communications and independent investigation of
the facts occurred outside of the courtroom.
(d) The misconduct at issue occurred in respondent’s official capacity as
Justice of the Peace.
(e) Respondent has acknowledged and apologized for her misconduct.
During her appearance before the Commission, however, respondent made several
statements that indicated she did not truly understand why some of her actions
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were improper. Further, respondent placed some blame for her predicament on the
LeBlancs.
(f) Respondent has detailed her efforts to change or modify her conduct.
She has attempted to educate herself in an effort to correct her improper conduct,
including re-reading the Justice of the Peace Court Manual, familiarizing herself
with the Code of Judicial Conduct, speaking with other Justices of the Peace, and
attending the Louisiana Attorney General’s 2013 Training Conference.
Respondent has also agreed to attend the Louisiana Attorney General’s 2014
Training Conference, although she is not legally obligated to do so, and intends to
share her experience with other Justices of the Peace so that they may avoid her
mistakes. She tried to address the concerns about her constable’s participation in
hearings by asking him not to attend hearings at all, even to provide security.
(g) Respondent had served as Justice of the Peace for twenty-three years
at the time of her misconduct.
(h) Respondent has no history of prior ethical misconduct in more than
two decades of service as a justice of the peace.
(i) Respondent’s actions have harmed the integrity of and the respect for
the judiciary. She improperly delegated her judicial authority to her constable and
frequently allowed him to “assist” her in the proceedings before her. She even
delegated her most basic role as a decision-maker to her constable in the Comeaux
case by allowing him to participate in the decision-making process. Several
agencies were notified of respondent’s actions, including the Louisiana State
Police, the Lafourche Parish District Attorney’s Office, and the Lafourche Parish
Sheriff’s Office.
(j) There is no evidence that respondent used her position to satisfy her
personal desires in this matter.
5
Based on these findings, the Commission recommended respondent be
suspended with pay for sixty days. The Commission also recommended that
respondent be ordered to reimburse $196.00 in hard costs to the Commission.
After the Commission’s recommendation was filed in this court, the parties
filed a motion seeking to waive briefing and oral argument and to have the court
consider the case based on the entire record of this matter. Respondent stated in
the motion that she accepted the Commission’s recommendation of discipline, but
she recognized this court is not bound to accept that recommendation. On April 9,
2014, we issued an order granting the motion to waive oral argument, but requiring
the parties to submit briefs addressing the Commission’s recommendation that
respondent be suspended with pay. Both parties filed briefs in response to the
court’s order.
DISCUSSION
Because respondent and the Special Counsel have stipulated to the facts, the
sole issue presented is the appropriate measure of discipline in this case. In re:
Shea, 02-0643 (La. 4/26/02), 815 So. 2d 813; In re: Decuir, 95-0056 (La. 5/22/95),
654 So. 2d 687. In determining an appropriate sanction, we are mindful that the
primary purpose of the Code of Judicial Conduct is to protect the public rather than
discipline judges. In re: Harris, 98-0570 (La. 7/8/98), 713 So. 2d 1138; In re:
Marullo, 96-2222 (La. 4/8/97), 692 So. 2d 1019.
As the Commission concluded, respondent has engaged in a pattern of
serious conduct which harmed the integrity of the judiciary. She improperly
delegated her judicial authority to her constable by allowing him to “assist” in the
proceedings before her and by allowing him to participate in her decision-making
process. She also engaged in improper ex parte communications with the litigants
and gave the appearance of deciding the case based on factors outside of the
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evidence. A justice of the peace as experienced as respondent should be well
aware of the need to maintain public respect and confidence in an impartial
judiciary.
Nonetheless, we find the record supports the Commission’s determination
that respondent did not act in bad faith in this matter and that she has made a
sincere effort to correct her improper conduct. Good faith is not an affirmative
defense to a judicial disciplinary charge; however, it may be considered as a
mitigating factor which militates in favor of a lesser sanction. Marullo, 96-2222 at
p.7, 692 So. 2d at 1023; Chaisson, 549 So. 2d at 267.
Considering all the circumstances in light of our prior jurisprudence,5 we
conclude a sixty-day suspension is appropriate. Although the Commission
recommended the suspension be with pay, we see no compelling reason to do so
under the instant facts. Accordingly, respondent’s suspension shall be without pay.
We will also order respondent to reimburse costs to the Commission.
DECREE
For the reasons assigned, it is ordered that Justice of the Peace Mary Foret,
Second Justice of the Peace Court, Lafourche Parish, State of Louisiana, be
suspended from office for a period of sixty days, without pay. Further, pursuant to
Supreme Court Rule XXIII, § 22, we cast Justice of the Peace Foret with costs
incurred in the investigation and prosecution of this proceeding in the amount of
$196.00.
5
While there are no prior cases involving the exact combination of misconduct at issue here, a
review of the jurisprudence in similar cases supports the conclusion that a sixty-day suspension
is appropriate for the misconduct when considered as a whole. See, e.g., In re: Cresap, 06-1242
(La. 10/17/06), 940 So. 2d 624 (suspending judge for thirty days for, among other misconduct,
engaging in prohibited ex parte communications by telephoning one of the parties); In re:
Badeaux, 11-0214 (La. 7/1/11), 65 So. 3d 1273 (judge censured for failure to self-recuse from
case involving close personal friends, one of whom had engaged in ex parte communications
with the judge about the case); In re: Best, 98-0122 (La. 10/20/98), 719 So. 2d 432 (censuring
judge for, among other misconduct, asking the audience to vote on the guilt or innocence of a
criminal defendant).
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