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SUPREME COURT OF LOUISIANA NO. 96-0-2116 IN RE JUDGE HENRY H. LEMOINE, JR. ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA CALOGERO, Chief Justice.* This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that respondent, Henry H. Lemoine, Jr., judge of the Pineville City Court, Wards 9, 10, and 11 of the Parish of Rapides, be publicly censured for misconduct. The Judiciary Commission conducted investigatory hearings, made findings of fact and law, and recommended that respondent be censured for violating LSA-C.C.P. Art. 151 and LSA-C.Cr.P. Art. 671 and Canons 1, 2 and 5C(1) of the Code of Judicial Conduct. misconduct charged was essentially two-fold. The

First, he did not

voluntarily recuse himself in 32 civil and criminal cases, but rather presided over them notwithstanding that in each instance he was or had been associated with an attorney during the latter's employment in the case. Secondly, he purportedly acted improperly

by frequently engaging in financial and business dealings with lawyers likely to come before the court on which he served. The

Commission alleged that by reason of the charged violations, he had engaged in willful misconduct relating to his official duty and had engaged in persistent and public conduct prejudicial to the

administration of justice that brings the judicial office into disrepute. For the reasons which follow we find the charges proven

and discipline warranted regarding Judge Lemoine's not recusing himself in 21 criminal cases, and in his frequently engaging in financial and business dealings with lawyers who were likely to come, and in fact did come, before him in the Pineville City Court. The Commission's findings and recommendation that Judge

Lemoine be censured rest on the following facts, which were either

*

Marcus, J., not on panel, Rule IV, Sec. 3.

admitted by respondent in his answer to the Commission's Formal Charge, or established in his testimony before the Commission. Respondent, Henry H. Lemoine, Jr., is an attorney who

practices law in Pineville, LA.

He was elected judge of the

Pineville City Court, and took his oath of office on January 2, 1991. The position is a part-time judgeship. He has therefore

been able to continue to practice law after becoming a judge of the City Court. From June 19, 1989 until sometime in 1994, Harold A. Van Dyke, III, an attorney, rented office space from respondent at 607 Main Street, Pineville, Louisiana. In 1994, Van Dyke purchased from

Judge Lemoine a one-third ownership interest in the Main Street building with an option to purchase another one-sixth. Since 1994,

respondent has therefore co-owned the building located at 607 Main Street, Pineville, Louisiana, which bears a sign, "Lemoine-Van Dyke Law Center." From 1991 to April 30, 1995, Judge Lemoine also

rented space at 607 Main Street to another attorney, one Michael A. Brewer. After taking office as Pineville City Court judge in 1991,

respondent and Van Dyke associated each other on a total of twentyone cases, nine criminal and twelve civil cases, either by referral or shared representation. Attorney fees were generally split With the tenant, "Flexible Legal

between them on either a 50/50 or a 55/45 basis. attorney Brewer, respondent entered into a

Agreement," dated August 11, 1993, by which respondent would thereafter provide Brewer overhead and miscellaneous incidentals in addition to office space, in exchange for a share of legal fees earned by Brewer.1 The shared percentage of fees was to vary depending on the circumstances of the case. Pursuant to their agreement, respondent was to receive 50% of the fees earned in cases, later to be identified, brought in by Brewer and worked by Brewer alone, 60% if both worked these cases. Respondent was to receive 70% for cases, later to be identified, that he brought in but were worked by him and Brewer together. All cases brought in were not automatically subject to the arrangement. Paragraph XI of the agreement gave each party "a mutual and complete right of refusal on any case." Thereafter, respondent and Brewer in fact entered into fee arrangements in three cases, one each on March 8, 1994, June 16, 2
1

Respondent presided over 32 cases between 1991 and 1995 in the Pineville City Court in which one of the litigants was represented by either Van Dyke or Brewer. Lemoine share fees. In none of these 32 cases did Judge

Respondent did not advise the litigants in

those cases of his relationship with Van Dyke or Brewer, and recused himself in only one, In the Interest of Adcock, No. 1993CC-92-1. That case, one involving child custody, precipitated a

letter of complaint from one Dexter Adcock, father of the children in the custody dispute, and prompted the Judiciary Commission's investigation. Adcock sent his complaint to the Commission eight

months before he filed the motion which prompted Judge Lemoine to recuse himself in the case. On December 11, 1995, the Judiciary

Commission filed a Formal Charge against respondent.2 1994, and September 2, 1994.
2

The Charge reads as follows:

A. That after first taking the judicial oath of office on January 2, 1991, and each and every year thereafter, you, JUDGE LEMOINE, have operated the "Lemoine-Van Dyke Law Center" located at 6078 [sic] Main St., Pineville, LA 71360, with Harold A. Van Dyke, III, an attorney. From June 19, 1989 through 1994, Harold A. Van Dyke, III rented office space from you at 6078 [sic] Main St., Pineville, LA 71360. Thereafter, in 1994, Harold A. Van Dyke, III purchased a 1/3 ownership interest from you, with an option to purchase a remaining 1/6 interest, in the property located at 6078 [sic] Main St., Pineville, LA 71360. B. That after first taking the judicial oath of office on January 2, 1991, and each and every year thereafter until April 30, 1995, you, JUDGE LEMOINE, also rented office space at 6078 [sic] Main St., Pineville, LA 71360 to Michael A. Brewer, an attorney. C. That after first taking the judicial oath of office on January 2, 1991, and each and every year thereafter, you, JUDGE LEMOINE, and Harold A. Van Dyke, III, have associated each other on a total of approximately twenty-one (21) criminal and civil cases, including both the referral of cases to each other and also the shared representation on other cases wherein you each were responsible for the work product. Generally, all fees in such cases were split between you and Mr. Van Dyke on either a 50/50 or 45/55 basis. D. That you, JUDGE LEMOINE, and Michael A. Brewer entered into a "Flexible Legal Agreement," dated August 11, 1993, which provided office space, overhead and miscellaneous incidentals in exchange for a fee sharing arrangement between Mr. Brewer and you, depending upon the circumstances of the case. Thereafter, on March 8, 1994, June 16, 1994 and September 2, 1994 you and Mr. Brewer entered into fee agreements on particular cases. 3

Recusation procedure.

of

judges

is

a

serious

and

important

legal

It involves a judge's removing himself or being removed Recusal may be

from a case and being replaced by another judge.

voluntary as when a judge takes himself off a case for legally compelling reasons or simply because he believes that he cannot fairly and impartially judge a matter before him. 152; LSA-C.CR.P. art. 672. LSA-C.C.P. art.

It may be involuntary as when a

litigant files a motion to recuse for stated legal reasons, the judge refuses to recuse himself, and court proceedings thereafter result in his being recused by another trial judge or by an appellate court. LSA-C.C.P. art. 151; LSA-C.CR.P. art. 671. In

this latter situation, the law dictates how the matter is to be

E. That you, JUDGE LEMOINE, had occasion to preside over certain legal matters in the Pineville City Court, Wards 9, 10 & 11, in which one of the litigants had occasion to be represented by Harold A. Van Dyke, III. You did not advise the litigants in said cases of your financial relationship with Mr. Van Dyke and/or you did not recuse yourself, despite the financial relationship. Those cases include, but are not limited to: . . . . [Omitting list of the 25 cases handled by Van Dyke] F. That you, JUDGE LEMOINE, had occasion to preside over certain legal matters in the Pineville City Court, Wards 9, 10 & 11, in which one of the litigants had occasion to be represented by Michael A. Brewer. You did not advise the litigants in said cases of your financial relationship with Mr. Brewer and/or you did not recuse yourself, despite the financial relationship. Those cases include, but are not limited to: . . . . [Omitting list of the 7 cases handled by Brewer] G. By reason of the foregoing Sections A through F, you have: (1) Violated Canons 1, 2 and 5C(1) of the Code of Judicial Conduct adopted by the Supreme Court of Louisiana, effective January 1, 1976; and (2) Engaged in willful misconduct relating to your official duty; and, (3) Engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. 4

resolved.3 In each possible recusal situation, there is a countervailing consideration which militates in favor of a judge's not recusing himself, or being recused; that is, that the judge has an

obligation, part of his sworn duty as a judge, to hear and decide cases properly brought before him. He is not at liberty, nor does

he have the right, to take himself out of a case and burden another judge with his responsibility without good and legal cause.4 In the matter of recusal, there is a distinct difference between a legal review of the grounds for recusal and of a judge's decision not to recuse himself, on the one hand, and misconduct on the part of the judge, and imposition of discipline, on the other. Rarely, if ever, is it to be expected that the judge's call not to recuse himself after challenge will entail misconduct on his part. He has exercised a degree of discretion in that refusal, and his decision is subject to legal review and resolution in accordance with law. situation Nor is it likely that misconduct will arise in a where a judge, unchallenged, desists from recusing

himself where there is no clear obligation on his part, statutory or otherwise, to do so. That judgment call is much like a judge's

decision on substantive and procedural matters which daily come before him. The performance of his and role as judge or has him

repeatedly

exercising

discretion,

misconduct,

ethical

transgression, rarely ever comes into play. Virtually all of the cases which have addressed grounds for recusal, even those which have drawn support from references to The procedure for recusal is identical in criminal and civil matters. Under Article 154 of the C.C.P. or Article 674 of the C.Cr.P., upon the filing of a written recusal motion by a party in which a valid ground for recusal is set forth, the judge "shall either recuse himself, or refer the motion to another judge or a judge ad hoc" as provided in Articles 155 and 156 of the C.C.P., and Article 675 of the C.Cr.P. There is this consideration too. A judge should not recuse himself if there is no impediment to his sitting in a case in which he can be fair and impartial, and yet he is challenged by a litigant who believes that the prospect of success in the case, before a different judge, is or might be better. 5
4 3

"appearances of impropriety," have been legal contests directed at whether a judge should be permitted to sit on a given case. They

have involved reversing, or affirming, a judge's decision not to recuse himself, or herself. None have involved disciplinary See,

violations based solely on a judge's failure to self-recuse.

e.g., State v. Lemelle, 353 So. 2d 1312, 1314 (La. 1977) (reversing a criminal conviction and remanding for a new trial on the basis that the trial judge should have recused himself); State v.

LeBlanc, 367 So. 2d 335, 341 (La. 1979) (reversing conviction, remanding for new trial based on judge's failure to recuse); State v. Krinke, 534 So.2d 431 (La. 1988) (reversing lower courts in a criminal case and granting a motion to recuse); Rollo v. Dison, 402 So.2d 122 (La. App. 2d Cir. 1981) (reversing a district judge's denial of a motion to recuse another judge in a civil case), writ denied, 404 So.2d 265 (La. 1981). Misconduct and judicial discipline, on the other hand,5 is entirely different. Misconduct exposes a judge to punishment,

anywhere from public censure (which may ultimately result in "removal" of the judge by the constituency that elects him) to removal from office by the Supreme Court. The Louisiana

Constitution creates a Judiciary Commission which has the power to recommend to the Supreme Court these extremes, as well as LA.

suspension, with or without pay, and involuntary retirement. CONST. art. V,

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