Petition for Writ of Certiorari — Texas Brine Company, LLC, Petitioner v. Florida Gas Transmission Company, LLC

No.

In the Supreme Court of the United States

TEXAS BRINE COMPANY, LLC,

Petitioner,

v.

FLORIDA GAS TRANSMISSION COMPANY, LLC, et al.,

Respondents.

On Petition for a Writ of Certiorari to

the Louisiana Court of Appeal, First Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES M. GARNER

PAUL W. HUGHES

Counsel of Record

JOSHUA S. FORCE

MICHAEL B. KIMBERLY

STUART D. KOTTLE

ANDREW A. LYONS-BERG

Sher Garner Cahill

McDermott Will & Emery LLP

Richter Klein &

500 North Capitol Street NW

Hilbert, L.L.C.

Washington, DC 20001

909 Poydras Street

(202) 756-8000

28th Floor

New Orleans, LA 70112 phughes@mwe.com

(504) 299-2100

Counsel for Petitioner

i

QUESTION PRESENTED

“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133,

136 (1955). To that end, “[r]ecusal 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.” Rippo v. Baker, 137 S. Ct.

905, 907 (2017) (per curiam) (quotation omitted).

To vindicate this right, a litigant who demonstrates

a genuine concern of judicial bias must have recourse

to an evidentiary hearing to uncover the true facts. Indeed, “[t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias.”

Smith v. Phillips, 455 U.S. 209, 215 (1982) (emphasis

added). Neutral judges and jurors are both essential to

due process, and the procedural protections should be

in accord.

Relevant here, Louisiana law requires the random

assignment of cases and judges to appellate panels. See

La. Code Civ. Proc. art. 2164.1; La. Rev. Stat. § 13:319.

But, in the sprawling and politically sensitive litigation

below, one Louisiana appellate judge has sat on panels

handling thirty-one of fifty-two appeals and has signed

sixty-six of one hundred six single-judge orders. Petitioner has presented evidence that the odds of those

distributions occurring by random chance—the method

of allocation mandated by state law—are infinitesimally low: 24.5 million to one and 25.7 tredecillion to one,

respectively. No party has offered an innocent explanation for that facially unlawful level of participation.

The question presented is:

When a litigant presents a colorable claim of judicial bias, does due process entitle that litigant to an evidentiary hearing?

ii

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below are listed in

the appendix, infra, at 184a-186a.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, petitioner

states that it has no parent corporation and that no

publicly held company owns 10% or more of its stock.

RELATED PROCEEDINGS

A full list of related proceedings is provided in the

appendix, infra, at 187a-200a.

iii

TABLE OF CONTENTS

Question Presented ..................................................... i

Parties to the Proceedings Below .............................. ii

Corporate Disclosure Statement ............................... ii

Related Proceedings ................................................... ii

Table of Authorities..................................................... v

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Constitutional Provision Involved ..............................1

Statement ....................................................................1

A. Legal background. ............................................3

B. Factual and procedural background. ...............7

Reasons for Granting the Petition ............................12

A. There is a conflict on the question

presented.........................................................13

B. When a litigant identifies a genuine

concern regarding judicial bias, due

process requires a hearing to address

the bias. ........................................................... 15

1. An impartial tribunal is essential to

due process. ............................................... 15

2. Hearing rights are necessary to

vindicate the fair-trial guarantee. ............16

3. The juror-bias framework provides

an existing, workable standard for

judicial bias................................................21

4. Petitioner has presented a colorable

claim of judicial bias, warranting a

hearing. ......................................................22

C. This is a compelling vehicle for review. .........25

Conclusion .................................................................29

iv

TABLE OF CONTENTS—CONTINUED

Appendix A — Court of Appeal orders.....................1a

Appendix B — Louisiana Supreme Court

orders ..............................................17a

Appendix C — Liability judgment .........................23a

Appendix D — Oral-argument orders ................... 56a

Appendix E — Beyl affidavit ..................................64a

Appendix F — Supplemental Beyl affidavit ..........76a

Appendix G — Motion for evidentiary hearing .....92a

Appendix H — Affidavit of Judge J. Michael

McDonald .................................... 111a

Appendix I — Letter to clerk of court ................. 114a

Appendix J — Writ application to Louisiana

Supreme Court ............................. 116a

Appendix K — Parties to the Proceedings ........... 184a

Appendix L — Related Cases ............................... 187a

v

TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986) .......................................... 5, 17

American Motorists Ins. Co. v. Starnes,

425 U.S. 637 (1976) .............................................. 26

Barnes v. Joyner,

751 F.3d 229 (4th Cir. 2014) ............................ 7, 21

Bracy v. Gramley,

520 U.S. 899 (1997) ................................................ 3

Burlington Northern R. Co. v. Ford,

504 U.S. 648 (1992) .............................................. 27

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ...................................... passim

Chapman v. California,

405 U.S. 1020 (1972) ............................................ 28

City of Jacksonville v. Venhaus,

788 S.W.2d 478 (Ark. 1990) ................................. 18

Clark v. Board of Educ. of Indep. Sch. Dist.

No. 89,

32 P.3d 851 (Okla. 2001)...................................... 13

Concrete Pipe & Prod. of Cal., Inc. v. Construction

Laborers Pension Tr. for S. Cal.,

508 U.S. 602 (1993) ................................................ 3

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) .............................................. 27

Cruz v. Abbate,

812 F.2d 571 (9th Cir. 1987) .......................... 24, 28

Ellis v. Minneapolis Comm’n on Civil Rights,

295 N.W.2d 523 (Minn. 1980) .............................. 14

Ewing v. Horton,

914 F.3d 1027 (6th Cir. 2019) .......................... 7, 21

vi

Cases—continued

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) .......................................... 23

Fry v. Superior Court,

222 Cal. App. 4th 475 (2013) ............................... 14

Grutter v. Bollinger,

16 F. Supp. 2d 797 (E.D. Mich. 1998) ................. 24

Jenkins v. Bellsouth Corp.,

2002 WL 32818728 (N.D. Ala. 2002) ................... 24

Joint Anti-Fascist Comm. v. McGrath,

341 U.S. 123 (1951) .......................................... 3, 19

In re Marshall,

721 F.3d 1032 (9th Cir. 2013) .............................. 23

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ...................................... passim

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................ 16, 17, 19, 20

Mercantile National Bank v. Langdeau,

371 U.S. 555 (1963) ........................................ 26, 27

Miller Dollarhide, P.C. v. Tal,

163 P.3d 548 (Okla. 2007) .................................... 13

Mistretta v. United States,

488 U.S. 361 (1989) .......................................... 4, 20

In re Murchison,

349 U.S. 133 (1955) .............................. 3, 15, 17, 19

Nash v. Hendricks,

250 S.W.3d 541 (Ark. 2007) ........................... 14, 22

Offutt v. United States,

348 U.S. 11 (1954) .................................................. 5

PATCO v. FLRA,

672 F.2d 109 (D.C. Cir. 1982) .............................. 24

vii

Cases—continued

Remmer v. United States,

347 U.S. 227 (1954) ...................................... 6, 7, 21

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ............................................... 4

Rippo v. Baker,

137 S. Ct. 905 (2017) (per curiam) .............. passim

Smith v. Phillips,

455 U.S. 209 (1982) .......................................... 6, 21

St. Joseph Stock Yards Co. v. United States,

298 U.S. 38 (1936) ................................................. 3

State v. Chamberlain,

162 P.3d 389 (Wash. 2007) .................................. 14

State v. Nunez,

187 So. 3d 964 (La. 2016)..................................... 19

State ex rel. Stockman v. Frawley,

470 S.W.3d 401 (Mo. App. 2015) ......................... 14

Stouffer v. Trammell,

738 F.3d 1205 (10th Cir. 2013) ........................ 6, 21

Stovall v. State,

477 N.E.2d 252 (Ind. 1985) .................................. 14

Szypula v. Szypula,

482 A.2d 85 (Conn. App. 1984) ...................... 14, 22

Tanner v. United States,

483 U.S. 107 (1987) ................................................ 6

Tracey v. Palmateer,

341 F.3d 1037 (9th Cir. 2003) .............................. 21

United States v. Phillips,

59 F. Supp. 2d 1178 (D. Utah 1999) .............. 23, 24

United States v. Sylvester,

143 F.3d 923 (5th Cir. 1998) .................................. 7

viii

Cases—continued

State ex rel. Wesolich v. Goeke,

794 S.W.2d 692 (Mo. App. 1990) ......................... 14

Ward v. Village of Monroeville,

409 U.S. 57 (1972) .............................................. 3, 5

Westbrook v. State,

580 S.W.2d 702 (Ark. 1979) ................................. 17

Williams v. Pennsylvania,

136 S. Ct. 1899 (2016) .................................. passim

Williams-Yulee v. Florida Bar,

135 S. Ct. 1656 (2015) ...................................... 4, 20

Withrow v. Larkin,

421 U.S. 35 (1975) ............................................ 5, 17

Statutes, Rules, and Constitutions

28 U.S.C.

§ 1257.................................................................... 26

§ 1257(a) ........................................................... 1, 26

735 Ill. Comp. Stat.

5/2-1001(a)(2)(i) .................................................... 14

5/2-1001(a)(3)(iii) .................................................. 14

La. Code Civ. Proc. art. 2164.1 ............................. 9, 22

La. Rev. Stat. § 13:319 .......................................... 9, 22

Tex. R. Civ. P. 18a(g)(6) ............................................ 14

Other Authorities

Christine S. Studzinski, The Law of the Lawyer,

44 No. 4 Prac. Law. 7 (June 1998)....................... 23

David J. Mitchell, Four Years Later Last

Evacuation Orders Lifted at Bayou Corne

Sinkhole, Baton Rouge Advocate (Oct. 7, 2016).... 7

ix

Other Authorities—continued

David J. Mitchell, Judge: Fault for Bayou Corne

Sinkhole Lies with Texas Brine, OxyChem,

Vulcan, Baton Rouge Advocate (Jan. 12, 2018) .... 8

1 Frank L. Maraist, Louisiana Civil Law Treatise,

Civil Procedure § 14:17 (2d ed. 2018) .................... 9

The Federalist No. 78 (C. Rossiter ed. 1961)

(Alexander Hamilton) ............................................ 4

Hearing on S.B. 273, Louisiana State Senate

Comm. on Judiciary A (Apr. 10, 2018) ................ 20

Jonathan L. Entin, The Sign of “The Four”:

Judicial Assignment and the Rule of Law,

68 Miss. L.J. 369 (1998) ....................................... 24

Ken Silverstein, Letter from Baton Rouge: Dirty

South, Harper’s Magazine (Nov. 2013) ................. 8

1 Kristin E. Hickman & Richard J. Pierce,

Administrative Law Treatise § 7.7

(5th ed. 2018)........................................................ 15

Richard E. Flamm, Recusal & Disqualification

of Judges: For Cause Motions, Peremptory

Challenges & Appeals § 7.1 (2018) ...................... 14

What is Solution Mining?, Solution Mining

Research Institute.................................................. 7

Stephen M. Shapiro et al.,

Supreme Court Practice (10th ed. 2013) ............. 28

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Texas Brine Company, LLC, respectfully petitions for a writ of certiorari to review the judgments of the Louisiana Court of Appeal, First Circuit,

in these cases.

OPINIONS BELOW

The orders of the Court of Appeal, First Circuit,

(App., infra, 1a-16a) are unreported. The orders of the

Louisiana Supreme Court denying discretionary review, as well as the dissents from the denials (App., infra, 17a-22a), are reported at 270 So. 3d 573 and 270

So. 3d 575.

JURISDICTION

The Court of Appeal, First Circuit, entered the orders constituting its judgments on March 13, 2019.

App, infra, 1a-16a. The Louisiana Supreme Court denied discretionary review on May 6, 2019. On July 25,

2019, Justice Alito entered an order extending the time

for filing a petition for a writ of certiorari to September

3, 2019, and subsequently entered an order further extending the deadline to October 3, 2019. This Court’s

jurisdiction rests on 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in part: “No State shall * * * deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1.

STATEMENT

A fair tribunal is an essential aspect of due process.

And, as the Court has often recognized, biased decisionmakers—whether judges or jurors—are the antithesis of a fair tribunal. In the juror-bias context, therefore, the Court’s due process precedents require an evidentiary hearing when a litigant demonstrates a genuine concern about a juror’s partiality, allowing the

2

alleged bias to be thoroughly explored. The Court

should hold that this same framework applies when a

litigant demonstrates a genuine concern that a judge is

biased—in such a circumstance, due process likewise

compels an evidentiary hearing.

In these cases, however, the Louisiana state courts

rejected that argument. Louisiana statutes require the

random assignment of judges to three-member panels

of the intermediate appellate courts and mandate that

cases be assigned randomly to those panels as well.

But, in a series of related cases, one state appellate

judge has repeatedly sat on panels handling cases involving petitioner Texas Brine. A statistical analysis

presented to the Louisiana courts reveals that the odds

of this disproportionate participation occurring by random allotment are roughly 24.5 million to one. No innocent explanation for this repeated violation of state

law has been provided.

Texas Brine has thus demonstrated a genuine concern that the judge in question is biased—and it is entitled, at a minimum, to a hearing to explore this issue.

Texas Brine asked for a hearing in the courts below,

but it was repeatedly denied. Ultimately, the Louisiana

Supreme Court split 4 to 3; while the court summarily

denied petitioner’s request for relief, three justices dissented, agreeing that Texas Brine should have received

an evidentiary hearing.

This Court’s review is warranted. The lower courts

are divided on the issue; indeed, in at least one other

jurisdiction, petitioner would have been entitled to a

hearing as a matter of federal due process. That result

is, moreover, the correct one as a hearing right is necessary to vindicate the fundamental right to a fair tribunal. And, finally, this case presents an appropriate

vehicle for review of this important question.

3

A. Legal background.

1. “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). That is,

“the floor established by the Due Process Clause clearly requires * * * a judge with no actual bias against the

defendant or interest in the outcome of his particular

case.” Bracy v. Gramley, 520 U.S. 899, 904-905 (1997);

accord, e.g., Concrete Pipe & Prod. of Cal., Inc. v. Construction Laborers Pension Tr. for S. Cal., 508 U.S.

602, 617 (1993) (“[D]ue process requires a ‘neutral and

detached judge in the first instance.’”) (quoting Ward v.

Village of Monroeville, 409 U.S. 57, 61-62 (1972)); St.

Joseph Stock Yards Co. v. United States, 298 U.S. 38,

73 (1936) (Brandeis, J., concurring) (“The inexorable

safeguard which the due process clause assures is * * *

that the trier of the facts shall be an impartial tribunal.”).

The requirement of an impartial judge—central to

the process due every litigant—serves dual purposes.

Most obviously, it prevents unfair judicial conduct towards a litigant: “The neutrality requirement helps to

guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception

of the facts or the law.” Marshall v. Jerrico, Inc., 446

U.S. 238, 242 (1980).

Additionally, the impartiality required by due process “preserves both the appearance and reality of fairness, ‘generating the feeling, so important to a popular

government, that justice has been done.’” Marshall,

446 U.S. at 242 (quoting Joint Anti-Fascist Comm. v.

McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J.,

concurring)); see also ibid. (neutrality requirement

“ensur[es] that no person will be deprived of his inter-

4

ests in the absence of a proceeding in which he may

present his case with assurance that the arbiter is not

predisposed to find against him”).

The appearance of fairness is crucial, as “[t]he legitimacy of the Judicial Branch ultimately depends on

its reputation for impartiality and nonpartisanship.”

Mistretta v. United States, 488 U.S. 361, 407 (1989). As

the Court put it in Caperton:

Courts, in our system, elaborate principles of

law in the course of resolving disputes. The

power and the prerogative of a court to perform

this function rest, in the end, upon the respect

accorded to its judgments. The citizen’s respect

for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity

is, in consequence, a state interest of the highest order.

556 U.S. at 889 (quoting Republican Party of Minn. v.

White, 536 U.S. 765, 793 (2002) (Kennedy, J., concurring)); accord Williams-Yulee v. Florida Bar, 135 S. Ct.

1656, 1666 (2015) (“Unlike the executive or the legislature, the judiciary ‘has no influence over either the

sword or the purse; . . . neither force nor will but merely judgment.’ The judiciary’s authority therefore depends in large measure on the public’s willingness to

respect and follow its decisions.”) (quoting The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (Alexander

Hamilton)).

The Court’s precedents thus teach that “[b]oth the

appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.” Williams v.

Pennsylvania, 136 S. Ct. 1899, 1909 (2016) (emphasis

added); accord, e.g., Williams-Yulee, 135 S. Ct. at 1666

(“As Justice Frankfurter once put it for the Court, ‘jus-

5

tice must satisfy the appearance of justice.’”) (quoting

Offutt v. United States, 348 U.S. 11, 14 (1954)). And,

because of the fundamental nature of the interests protected, “[t]he requirement of neutrality has been jealously guarded by this Court.” Marshall, 446 U.S. at

242.

2. With these dual purposes in mind, the Court has

recently reiterated and refined the standards governing the disqualification of judges for bias—or potential

bias—under the Due Process Clause.

As the Court explained, “[r]ecusal 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.’” Rippo v. Baker,

137 S. Ct. 905, 907 (2017) (per curiam) (quoting

Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

This means that “the Due Process Clause may

sometimes demand recusal even when a judge ‘ha[s] no

actual bias.’” Rippo, 137 S. Ct. at 907 (quoting Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986)); accord

Williams, 136 S. Ct. at 1905 (“The Court asks not

whether a judge harbors an actual, subjective bias, but

instead whether, as an objective matter, ‘the average

judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”’”)

(quoting Caperton, 556 U.S. at 881).

In recent years, the Court has found this standard

satisfied—and recusal required as a matter of due process—in a wide variety of situations. When, for example, a member of a state supreme court ruled on the validity of a novel tort claim while simultaneously prosecuting a similar tort suit as a plaintiff, there was, at a

minimum, “a possible temptation to the average . . .

judge to . . . lead him not to hold the balance nice, clear

and true.” Aetna, 475 U.S. at 821-825 (quoting Ward,

6

409 U.S. at 60). So too when a state supreme court justice cast the deciding vote in favor of a corporation

whose chief executive had contributed significant sums

to the justice’s election campaign. Caperton, 556 U.S.

at 872-873. And, most recently, recusal was required

when a justice of a state supreme court had, decades

before, “been the district attorney who gave his official

approval to seek the death penalty in the [litigant’s]

case.” Williams, 136 S. Ct. at 1903.

The due process inquiry, as articulated in these

and other cases, is “whether, considering all the circumstances alleged, the risk of bias [is] too high to be

constitutionally tolerable.” Rippo, 137 S. Ct. at 907; see

also Caperton, 556 U.S. at 884 (requiring recusal where

“there is a serious risk of actual bias * * * based on objective and reasonable perceptions”).

3. While the Court has not had occasion to determine what minimum level of process is due to a litigant

who moves to disqualify a judge under Caperton, it has

developed a procedure for evaluating related claims of

partiality by a juror. In that analogous context, “[t]his

Court has long held that the remedy for allegations of

juror partiality is a hearing in which the defendant has

the opportunity to prove actual bias.” Smith v. Phillips,

455 U.S. 209, 215 (1982) (citing Remmer v. United

States, 347 U.S. 227 (1954)); see Tanner v. United

States, 483 U.S. 107, 120 (1987) (describing Smith and

Remmer as “requiring an evidentiary hearing where

extrinsic influence or relationships have tainted the deliberations”).

Courts of appeals applying Smith and Remmer

widely hold that, while not every allegation of juror

partiality will entitle a litigant to an evidentiary hearing, due process requires a hearing when those allegations satisfy a quantum of seriousness or credibility.

See, e.g., Stouffer v. Trammell, 738 F.3d 1205, 1214

7

(10th Cir. 2013) (hearing triggered by “genuine concerns” of bias); Ewing v. Horton, 914 F.3d 1027, 1031

(6th Cir. 2019) (“colorable claim”); Barnes v. Joyner,

751 F.3d 229, 243 (4th Cir. 2014) (“credible allegation”). “Remmer and its applications * * * thus require

a district judge, when confronted with credible allegations of jury tampering, to notify counsel for both sides

and hold a hearing with all parties participating.”

United States v. Sylvester, 143 F.3d 923, 932 (5th Cir.

1998).

B. Factual and procedural background.

1. The underlying litigation in this case arises from

the emergence of a sinkhole near the town of Bayou

Corne, Louisiana.

From 1982 until 2009, petitioner Texas Brine

Company operated a salt-mining well near the town on

land owned by the corporate predecessor of Occidental

Chemical Corporation, one of the respondents here.

App., infra, 26a. Petitioner produced salt brine for industrial uses through a process called solution mining,

in which fresh water is pumped through underground

wells to dissolve and incorporate salt compounds. Ibid.;

see What is Solution Mining?, Solution Mining Research Institute, https://perma.cc/SNU5-ETM7. The

well was plugged and abandoned, as required by state

law, in 2011. App., infra, 45a.

In August 2012, a large sinkhole appeared overnight near the site of the salt cavern, prompting a

years-long evacuation of hundreds of residents. App.,

infra, 25a; see, e.g., David J. Mitchell, Four Years Later

Last Evacuation Orders Lifted at Bayou Corne Sinkhole, Baton Rouge Advocate (Oct. 7, 2016),

https://perma.cc/L57J-43E8. The sinkhole eventually

grew to over thirty acres in size, and it became a significant political issue in Louisiana. App., infra, 25a-26a,

8

54a; see, e.g., Ken Silverstein, Letter from Baton Rouge:

Dirty South, Harper’s Magazine (Nov. 2013) (describing how “an increasingly loud public outcry” caused

“the Bayou Corne sinkhole [to] emerge[] as a major issue”

for

the

governor

and

legislature),

https://perma.cc/2U5B-7BX4.

Blame for the sinkhole in the public’s eye was initially directed at Texas Brine, based on the company’s

operation of the well. See David J. Mitchell, Judge:

Fault for Bayou Corne Sinkhole Lies with Texas Brine,

OxyChem, Vulcan, Baton Rouge Advocate (Jan. 12,

2018) (“As the operator of record, Texas Brine has, for

years, been held by state regulators and the public as

‘the responsible party’ for the sinkhole response.”),

https://perma.cc/366G-2MEF.

That blame has translated into a “staggering”

amount of sinkhole-related litigation involving Texas

Brine, spanning state, federal, and arbitral forums,

with hundreds of millions of dollars at stake. App., infra, 54a. Indeed, the sinkhole has spawned over fifty

individual appeals in the state-court litigation alone.

App., infra, 66a-68a. Petitioner’s continued existence

as a going concern likely depends on the outcomes of

the various sinkhole suits.

While Texas Brine has borne the brunt of political

opinion, it won a favorable liability judgment: A Louisiana state court held that the company was only 35%

responsible for the sinkhole, compared to the 90% to

100% liability that all of its opponents claimed. App.,

infra, 24a, 25a-55a. The Occidental entities, which are

among the respondents here, were assigned 50% of the

fault for the sinkhole. App., infra, 24a.

2. That liability judgment is one of the many sinkhole-related rulings that have been appealed to the

Louisiana Court of Appeal, First Circuit, the interme-

9

diate appellate court with geographic jurisdiction over

the Bayou Corne incident. Because Louisiana appellate

practice authorizes certain interlocutory writ applications in addition to appellate review of final judgments,

there have been scores of appellate proceedings relating to this litigation. See, e.g., 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure § 14:17 (2d

ed. 2018) (describing supervisory writ practice).

Louisiana law mandates that appeals and writ applications be randomly assigned to panels of the appellate court and that the panels themselves be randomly

constituted. La. Code Civ. Proc. art. 2164.1; La. Rev.

Stat. § 13:319. Pursuant to state law, therefore, each of

the twelve judges of the First Circuit should have participated in a roughly equal number of sinkhole proceedings.1

But one First Circuit judge—Judge J. Michael

McDonald—has been participating in the sinkhole cases at a truly disproportionate rate. Through its motions

and supplemental filings, Texas Brine submitted evidence demonstrating that, as of March 2019, Judge

McDonald had been assigned to panels hearing thirtyone of the fifty-two total sinkhole appeals. App., infra,

66a-68a. Texas Brine also introduced in evidence the

affidavit of a professor of statistics from Louisiana

State University, who calculated the odds of that distribution occurring by random chance at roughly 24.5

million to one. App., infra, 71a-72a.

The professor thus concluded, “in [his] expert opinion,” that Judge McDonald’s level of participation in

the sinkhole appeals “cannot, by any measure of statistical analysis, be deemed to arise due to random

1

In Louisiana, as in many States, appellate judges are elected to

office.

10

chance.” App., infra, 74a. That is, the probability that

Judge McDonald’s participation in the sinkhole cases

did not violate Louisiana’s random assignment law was

so infinitesimally small as to be nonexistent.

In addition to his presence on a statistically aberrant number of panels handling sinkhole appeals,

Judge McDonald had also personally signed sixty-six of

the one hundred six single-judge orders issued in the

sinkhole cases. App., infra, 79a. The odds of that happening by random chance were calculated at 25.7

tredecillion to one—less likely than rolling snake eyes

twenty-eight times in a row. App., infra, 80a-81a.2

3. Based on these facts, Texas Brine moved for

Judge McDonald’s recusal from several sinkhole matters then pending before the Court of Appeal, First

Circuit. Those motions were referred to the en banc

First Circuit, which ordered that they would be decided

“without oral argument” and based solely on the simultaneous submission of affidavits. App., infra, 56a-63a.

Texas Brine would be given no opportunity to call or

cross-examine witnesses and no opportunity to respond

to the opposing parties’ filings.

In addition to filing responsive documents, therefore, Texas Brine separately moved for an evidentiary

hearing on the recusal motions, arguing that the procedure proposed by the First Circuit “denie[d] Texas

Brine of its rights under the Fourteenth Amendment to

the U.S. Constitution * * * to procedural due process.”

App., infra, 109a.

Specifically, petitioner explained, “Texas Brine is

unaware of any possible explanation or justification

2

Including orders signed by the clerk of court in this calculation,

as one opposing party suggested, reduces the improbability of this

distribution to a mere 80 nonillion to one. App., infra, 83a.

11

that Judge McDonald may provide for his non-random

selection to an incredible 31 of 52 appellate panels

* * *. Due process requires that Texas Brine have a full

and fair opportunity to explore and challenge any such

explanation * * *.” App., infra, 97a. Because “Texas

Brine’s property rights in the District Court’s judgments are jeopardized by the non-random allotment of

appeals and by Judge McDonald’s expression of his inappropriate ‘interest’ in the sinkhole litigation,” petitioner contended, due process requires an evidentiary

hearing at which Texas Brine can “present witness testimony,” “cross-examine adverse witnesses, if any,” and

“present oral argument.” App., infra, 98a, 105a; cf.

app., infra, 108a-109a (noting that a full evidentiary

hearing “will have the salutary benefit of preserving

the Court’s institutional legitimacy” in the face of apparent deviations from the state-law-mandated “random allotment processes”).

The parties filed their simultaneous affidavits regarding recusal on March 11, 2019, in accordance with

the court’s order. Judge McDonald also submitted an

affidavit (though he did not serve it on Texas Brine),

stating, without elaboration, that “I have no personal,

financial, or other interest in the sinkhole litigation

that is pending in the First Circuit.” App., infra, 112a.

The affidavit further asserted Judge McDonald’s “belie[f]” that single-judge orders need not be randomly

assigned under state law, but did not proffer an explanation for why he had chosen to participate so heavily

in the sinkhole cases. App., infra, 111a-113a. Nor did

the affidavit address Judge McDonald’s statistically

anomalous number of assignments to panels handling

sinkhole appeals. Ibid.

The next day, March 12, Texas Brine informed the

clerk of court that it planned to file a response to the

opposing affidavits by March 21. App., infra, 114a-

12

115a. But, on March 13, the First Circuit denied Texas

Brine’s motions (and supplemental motions) for Judge

McDonald’s recusal, as well as its motions for an evidentiary hearing, in identical one-sentence orders containing no statement of the court’s reasoning. App., infra, 1a-16a. Four of the court’s twelve judges recused

themselves from these rulings. Ibid.

4. After seeking reconsideration from the First Circuit, Texas Brine filed a petition for review in the Louisiana Supreme Court. Along with arguing directly for

recusal, petitioner again sought relief on the basis that

“[t]he First Circuit violated fundamental principles of

due process by * * * failing to hold an evidentiary hearing prior to ruling on Texas Brine’s motion to recuse.”

App., infra, 176a.

The Louisiana Supreme Court initially stayed proceedings in the First Circuit, but ultimately denied

Texas Brine’s petitions in a 4-3 decision—again without providing reasoning. App., infra, 17a-22a. Three of

the seven Louisiana Supreme Court justices dissented,

noting that they “would grant and remand for [an] evidentiary hearing.” Ibid.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari and hold that,

where a litigant raises a substantial question regarding a judge’s impartiality with respect to a proceeding,

due process entitles that litigant to an evidentiary

hearing—just as current doctrine provides with respect

to allegations of juror bias.

First, the decisions below split from those of another state high court, which has held that due process requires a hearing on motions for judicial recusal. Second, the denial of a hearing conflicts with fundamental

due process principles and results in suspicions that

cloud the public’s perception of an impartial judiciary.

13

Moreover, existing doctrine on juror bias provides a

workable procedural framework for judicial-bias allegations. And, finally, this case is a compelling vehicle

for review.

A. There is a conflict on the question

presented.

The Louisiana courts below rejected Texas Brine’s

contention that “[p]rinciples of due process * * * require that Texas Brine be afforded an evidentiary hearing with respect to its pending recusal motion.” App.,

infra, 109a; see app., infra, 1a-16a, 17a-22a. That argument would have succeeded, however, in at least one

other jurisdiction.

The Supreme Court of Oklahoma has held that “[a]

challenge to an assigned judge for want of impartiality

presents an issue of constitutional dimension which

must be resolved and the ruling memorialized of record

after a meaningful evidentiary hearing.” Clark v.

Board of Educ. of Indep. Sch. Dist. No. 89, 32 P.3d 851,

854 (Okla. 2001) (emphasis omitted). According to that

court, having identified a genuine concern regarding

the judge’s impartiality (id. at 853 n.5), a litigant’s

“constitutional challenge afforded her the right to a

hearing on the issue she raised * * *. We will not presume from a silent record that the trial judge gave

Clark the constitutionally mandated orderly hearing to

which she was entitled and then declined to recuse

himself.” Id. at 855 (emphasis altered). Ultimately,

“[t]he trial judge’s failure to rule upon [the litigant’s]

quest to disqualify him deprived [the litigant] of a fundamental right guaranteed by the Due Process Clauses

of the Fifth and Fourteenth Amendments.” Ibid.; accord Miller Dollarhide, P.C. v. Tal, 163 P.3d 548, 552

(Okla. 2007) (quoting Clark). The Oklahoma courts

recognize a constitutional right to a hearing in these

14

circumstances; Louisiana courts do not. The Court

should grant certiorari to resolve this conflict.3

3

In addition, many States require a hearing as a matter of state

law. See, e.g., Tex. R. Civ. P. 18a(g)(6); 735 Ill. Comp. Stat. 5/21001(a)(3)(iii); Stovall v. State, 477 N.E.2d 252, 254 (Ind. 1985)

(Indiana rule of criminal procedure “requires the trial court to

hold a hearing prior to ruling on [a recusal] motion”); State ex rel.

Wesolich v. Goeke, 794 S.W.2d 692, 698 (Mo. App. 1990) (“At the

very least, under the statute, wife was entitled to a hearing on the

record on her motion to disqualify.”); Nash v. Hendricks, 250

S.W.3d 541, 546 (Ark. 2007) (“A hearing is necessary where requested and where there is more than a conclusory allegation that

a judge is biased or otherwise subject to recusal.”); Szypula v.

Szypula, 482 A.2d 85, 89 (Conn. App. 1984) (“[I]n order to obtain

an evidentiary hearing on a claim of actual bias * * * the party asserting the bias of the judge [must] state facts on the record

which, if true, give fair support to his claim.”).

“[I]n a substantial minority of jurisdictions,” moreover, litigants

enjoy a statutory right to peremptory disqualification of judges,

removing the need to demonstrate bias at all. Richard E. Flamm,

Recusal & Disqualification of Judges: For Cause Motions, Peremptory Challenges & Appeals § 7.1, at 87 (2018). See, e.g., Fry v. Superior Court, 222 Cal. App. 4th 475, 481 (2013) (“[California Code

of Civil Procedure] [s]ection 170.6 guarantees to litigants an extraordinary right to disqualify a judge. The right is automatic in

the sense that a good faith belief in prejudice is alone sufficient,

proof of facts showing actual prejudice not being required.”) (quotation marks omitted); 735 Ill. Comp. Stat. 5/2-1001(a)(2)(i) (“Each

party shall be entitled to one substitution of judge without cause

as a matter of right.”); State ex rel. Stockman v. Frawley, 470

S.W.3d 401, 404 (Mo. App. 2015) (“A civil litigant has a virtually

unfettered right to disqualify a judge without cause on one occasion.”) (quotation marks omitted); State v. Chamberlain, 162 P.3d

389, 394 (Wash. 2007) (“RCW 4.12.050 permits a party to change

judges once as a matter of right, upon a timely motion, without

substantiating the claim of prejudice.”); see also Ellis v. Minneapolis Comm’n on Civil Rights, 295 N.W.2d 523, 524-525 (Minn.

1980) (“[T]he right to peremptorily challenge a judge is to be liberally construed to safeguard in both fact and appearance the constitutional right to a fair and impartial trial.”).

15

Moreover, the Court carefully polices judicial

recusal issues in the lower courts, even absent disagreements between them. See Murchison, 349 U.S. at

136 (“[The] [i]mportance of the federal constitutional

questions raised” by state procedures that undermined

neutrality “caused us to grant certiorari.”). Because of

the importance of the due process guarantee of an impartial tribunal—both to individual rights and to our

constitutional system of government—“[t]he requirement of neutrality has been jealously guarded by this

Court.” Marshall, 446 U.S. at 242.

B. When a litigant identifies a genuine concern

regarding judicial bias, due process

requires a hearing to address the bias.

The decisions of the Louisiana courts denying Texas Brine a hearing on its recusal motions are contrary

to fundamental principles of due process.

1. An impartial tribunal is essential to due

process.

As we have explained (at 3-5), “[i]t is axiomatic

that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton, 556 U.S. at 876 (quoting Murchison, 349 U.S. at 136). Indeed, “[s]cholars

and judges consistently characterize provision of a neutral decisionmaker as one of the three or four core requirements of a system of fair adjudicatory decision

making.” 1 Kristin E. Hickman & Richard J. Pierce,

Administrative Law Treatise § 7.7, at 866-867 (5th ed.

2018). The importance of the right derives not only

from the need to protect the personal and proprietary

interests of individual litigants; rather, “both the appearance and reality of impartial justice are necessary

to the public legitimacy of judicial pronouncements and

thus to the rule of law itself.” Williams, 136 S. Ct. at

1909.

16

Along with notice and an opportunity to be heard,

therefore, an impartial decisionmaker—both in fact

and in appearance—is critical to the Constitution’s due

process guarantee. Cf. Williams, 136 S. Ct. at 1909

(“An insistence on the appearance of neutrality is not

some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication.”). To that end, the

Court has made clear that “[r]ecusal 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.” Rippo, 137 S. Ct. at 907

(quoting Withrow, 421 U.S. at 47); see also ibid. (“[T]he

Due Process Clause may sometimes demand recusal

even when a judge ‘ha[s] no actual bias.’”) (quoting

Aetna, 475 U.S. at 825).

2. Hearing rights are necessary to vindicate the

fair-trial guarantee.

The due process guarantee of an objectively impartial decisionmaker cannot be actualized, however,

without adequate procedures for challenging potentially biased judges. Due process requires a hearing when

a party raises genuine concerns about a judge’s impartiality—as is already the rule with respect to allegations of potential juror bias.

Generally, whether due process requires particular

procedures is governed by the test set out in the

Court’s decision in Mathews v. Eldridge, 424 U.S. 319

(1976). Mathews “requires consideration of three distinct factors”:

First, the private interest that will be affected

by the official action; second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if

any, of additional or substitute procedural

17

safeguards; and finally, the Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement

would entail.

Id. at 335.

The Mathews v. Eldridge analysis cuts strongly in

favor of a hearing here.

First, the “private interest” at stake (Mathews, 424

U.S. at 335) is nothing less than “a fair trial in a fair

tribunal,” which is itself “a basic requirement of due

process.” Murchison, 349 U.S. at 136. That is, Texas

Brine seeks to protect its interest against having its

rights determined in proceedings in which “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

Rippo, 137 S. Ct. at 907. And underlying that due process interest are Texas Brine’s proprietary interests in

the subject matter of the litigation, in which adverse

parties seek to press claims worth hundreds of millions

of dollars against Texas Brine. These interests are substantial, to say the least, and they may entail the very

survival of the company.

Second, without a hearing, the risk of an erroneous

deprivation of those rights is high. See Mathews, 424

U.S. at 335. As one state supreme court observed in

finding a common-law right to hearings on recusal motions, “[a]lthough the burden was upon the [movant] to

show cause for disqualification of the presiding judge,

he could hardly do so without the opportunity to be

heard on his motion.” Westbrook v. State, 580 S.W.2d

702, 705 (Ark. 1979); see also ibid (“Therefore, we feel

it was error for the judge to fail to hold a hearing to determine whether he should remove himself from the

case * * * . [I]n view of the serious allegations made in

18

the motion, a hearing should have been held.”); City of

Jacksonville v. Venhaus, 788 S.W.2d 478, 480 (Ark.

1990). Without a hearing, that is, the fundamental

right to an impartial judge may well go unvindicated.

And, without a hearing, there is no feasible way for a

superior court to engage in meaningful judicial review.

Here, for example, the simultaneous-affidavit procedure adopted by the Court of Appeal meant that the

parties had no opportunity to respond to each other’s

submissions, let alone to Judge McDonald’s unserved

affidavit. Among other things, that procedure led to the

unjustifiable result that Texas Brine’s motion was denied even while no party—including Judge McDonald

himself—ever proffered an innocent explanation for

Judge McDonald’s statistically aberrant level of participation in the sinkhole cases.

That point bears repeating. Texas Brine submitted

evidence demonstrating to a near statistical certainty

that Judge McDonald had not been assigned to its cases in accordance with the random allotment mandated

by state law. App., infra, 71a-74a. Indeed, the odds

that Judge McDonald’s anomalous participation occurred by random chance are 24.5 million to one. Ibid.

And no one ever suggested how that distribution could

have occurred without violating state law or, if the law

were violated, a reason why the violation should not

support the inference of judicial bias. That is especially

true in the circumstances of this case, where the issue

was highly politically sensitive, there were dozens of

recurring appeals before the same court, and the same

judge took a special interest in these cases, manifested

through repeated adjudications of single-judge orders.

In the face of that unrefuted evidence, the unexplained denials of Texas Brine’s recusal motions and

requests for hearing seriously undermine one of the

dual purposes of the impartial-decisionmaker require-

19

ment: “the feeling, so important to a popular government, that justice has been done.” Marshall, 446 U.S.

at 242 (emphasis added) (quoting Joint Anti-Fascist

Comm., 341 U.S. at 172 (Frankfurter, J., concurring)).

If “justice must satisfy the appearance of justice” to

satisfy due process (Murchison, 349 U.S. at 136), the

denial of a hearing to explore the reasons for Judge

McDonald’s statistically anomalous involvement not

only “risk[s] * * * erroneous deprivation” of the due

process right (Mathews, 424 U.S. at 335 (emphasis

added)), but denies it outright.

Moreover—and fortunately for “the public legitimacy of judicial pronouncements and thus [] the rule of

law itself” (Williams, 136 S. Ct. at 1909)—“the probable value * * * of additional or substitute procedural

safeguards” in this context (Mathews, 424 U.S. at 335)

is quite high. A hearing at which Texas Brine could call

witnesses and put on evidence of bias would either

demonstrate the necessity of Judge McDonald’s recusal

or, if an innocent explanation for his participation existed, dispel the cloud of suspicion that currently enshrouds the sinkhole litigation.

These possibilities are more than merely theoretical. If afforded a hearing, Texas Brine could, for example, call the clerk of court as a witness, eliciting testimony as to the process by which the sinkhole appeals

were assigned to panels and why Judge McDonald has

been involved in so many. See, e.g., State v. Nunez, 187

So. 3d 964, 967 (La. 2016) (describing hearing at which

“the office manager for the Clerk of Court’s office” testified regarding “allotment procedure”). Indeed, the chief

judge of the Court of Appeal, First Circuit—the court

at issue here—testified before the state legislature during debate on what became the random allotment statute:

20

[I]f there is some suspicion about something

not being done correctly in the allotment of

cases, * * * in our court we have two people

who do this allotment process—we do it with

human hands, which means that we have a

record and we have witnesses who can testify as

to that.

Hearing on S.B. 273, Louisiana State Senate Comm. on

Judiciary A, at 2:21:45-2:22:15 (Apr. 10, 2018) (emphasis added), http://senate.la.gov/video/videoarchive

.asp?v=senate/2018/04/041018JUDA_0. Such testimony

and evidence of the court’s record would go a long way

toward demonstrating the necessity of recusal, one way

or the other—and its availability makes the First Circuit’s refusal to hold a hearing all the more anomalous.

Finally, “the Government’s interest” (Mathews, 424

U.S. at 335) is largely aligned with that of Texas Brine

here. As described above, “[j]udicial integrity is * * * a

state interest of the highest order.” Caperton, 556 U.S.

at 889; accord, e.g., Mistretta, 488 U.S. at 407 (“The legitimacy of the Judicial Branch ultimately depends on

its reputation for impartiality and nonpartisanship.”);

Williams-Yulee, 135 S. Ct. at 1666. The State thus has

just as strong an interest in ensuring its judges are

impartial as do the litigants in court. And, while the

government has an interest, of course, against wasting

judicial resources on meritless evidentiary hearings,

that possibility is not implicated if a credible allegation

of partiality is a precondition for requiring a hearing in

the first place. Such a hearing is a low price to pay

when weighed against the potential constitutional deprivations it would avert.

In short, requiring an evidentiary hearing where a

party raises genuine concerns about a judge’s impartiality easily satisfies the Mathews test. Due process

therefore requires such a proceeding.

21

3. The juror-bias framework provides an

existing, workable standard for judicial bias.

In a directly analogous circumstance, “[t]his Court

has long held that the remedy for allegations of juror

partiality is a hearing in which the defendant has the

opportunity to prove actual bias.” Smith, 455 U.S. at

215 (emphasis added); see also Remmer, 347 U.S. at

228-230. This precedent is highly analogous, if not controlling, as jurors and judges both stand as adjudicators in litigation—they are the actors whose impartiality must be beyond reproach. If anything, the standard

for judicial recusal (“probability” of bias too high to be

“tolerable,” Rippo, 137 S. Ct. at 907), is far lower than

the “actual bias” standard for juror disqualification

(Smith, 455 U.S. at 215).

While “Remmer and Smith do not stand for the

proposition that any time evidence of juror bias comes

to light, due process requires the trial court to question

the jurors alleged to have bias” (Tracey v. Palmateer,

341 F.3d 1037, 1044 (9th Cir. 2003)), the courts of appeals are in wide agreement that due process requires

a hearing when the allegations of partiality satisfy a

quantum of seriousness or credibility. See, e.g., Ewing,

914 F.3d at 1030 (“[W]here a colorable claim of extraneous influence has been raised, an evidentiary hearing must be held to afford the defendant an opportunity to establish actual bias.”) (emphasis added; quotation marks omitted; alteration incorporated); ibid.

(“[D]ue process requires” this step.); Stouffer, 738 F.3d

at 1214 (“The trial court’s duty to conduct a Remmer

hearing when genuine concerns of improper juror contact arise is clearly established by the Supreme

Court.”) (emphasis added); Barnes, 751 F.3d at 243

(“[D]ue process requires a hearing to alleviate concerns

of juror partiality” when “the defendant presents a

credible allegation of communications or contact be-

22

tween a third party and a juror concerning the matter

pending before the jury.”) (emphasis added).4

The same principle must apply here: When a party

presents sufficiently credible evidence and allegations

that the foundational due process protection of an impartial tribunal has been denied, due process requires

a concomitant opportunity to substantiate that claim.

4. Petitioner has presented a colorable claim of

judicial bias, warranting a hearing.

The evidence submitted by Texas Brine satisfies

any possible threshold standard of genuineness or

credibility, entitling the company to an evidentiary

hearing on its motion to recuse.

As described above, Texas Brine demonstrated that

Judge McDonald’s level of participation in the sinkhole

appeals “cannot, by any measure of statistical analysis,

be deemed to arise due to random chance.” App., infra,

74a. More specifically, the odds that Judge McDonald

just happened to be assigned randomly to thirty-one of

fifty-two sinkhole appeals is 24.5 million to one. App.,

infra, 72a. But random chance—which is ruled out by

the statistics—is precisely the method of case allocation that state law requires. See La. Code Civ. Proc.

art. 2164.1; La. Rev. Stat. § 13:319.

This uncontroverted evidence that Judge McDonald was assigned to the sinkhole cases in violation of

4

State courts that have found a common-law right to hearings on

judicial-recusal motions apply similar threshold tests. See Nash v.

Hendricks, 250 S.W.3d 541, 546 (Ark. 2007) (“A hearing is necessary where requested and where there is more than a conclusory

allegation that a judge is biased or otherwise subject to recusal.”);

Szypula v. Szypula, 482 A.2d 85, 89 (Conn. App. 1984) (“[I]n order

to obtain an evidentiary hearing on a claim of actual bias * * * the

party asserting the bias of the judge [must] state facts on the record which, if true, give fair support to his claim.”).

23

state law—coupled with the lack of any innocent, impartial explanation—is arguably enough on its own to

prove a “serious risk of actual bias * * * based on objective and reasonable perceptions,” requiring recusal under Caperton and its progeny. Caperton, 556 U.S. at

884.5 This risk is further underscored by Judge

McDonald’s decision to inject himself into a significant

percentage of single-judge orders. See app., infra, 80a81a. Together, these facts are certainly sufficient to

justify an evidentiary hearing.

Random assignment—the method of judicial selection disregarded here—is itself an important safeguard

of the judiciary’s legitimacy. Indeed, “[c]ourts have

* * * recognized the role that random assignment procedures play in promoting fairness and impartiality

and in reducing the dangers of favoritism and bias.”

United States v. Phillips, 59 F. Supp. 2d 1178, 1180 (D.

Utah 1999) (collecting authorities); see also ibid.

(“[R]andom assignment protects the integrity of the judicial system by leaving the pairing of cases and judges

to chance.”) (quoting Christine S. Studzinski, The Law

of the Lawyer, 44 No. 4 Prac. Law. 7 (June 1998)).

To be sure, we do not suggest that due process requires random assignment. Cf., e.g., In re Marshall,

721 F.3d 1032, 1040 (9th Cir. 2013). Rather, where

state law requires random assignment, any

“[d]eparture from [those] neutral assignment proce5

As in other contexts, the Court may rely on reasonable inferences from statistical irregularities to prove the violation of constitutional rights. See Flowers v. Mississippi, 139 S. Ct. 2228,

2245, 2251 (2019) (that prosecution used peremptory strikes on

“41 of the 42 black prospective jurors it could have struck” “strongly supports the conclusion” of discrimination for a Batson claim);

id. at 2245 (“The numbers speak loudly.”). The same principle applies here.

24

dures calls into question the hallmarks of our judicial

system, fairness and impartiality.” Jenkins v. Bellsouth

Corp., 2002 WL 32818728, at *6 (N.D. Ala. 2002) (emphasis added); accord Grutter v. Bollinger, 16 F. Supp.

2d 797, 802 (E.D. Mich. 1998) (“A system of random assignment is purely objective and is not open to the criticism that business is being assigned to particular

judges in accordance with any particular agenda,” and

when such a system exists but is not followed, “at a

minimum the appearance of impropriety is manifest.”);

Phillips, 59 F. Supp. 2d at 1180 (“[A]ttempts to manipulate the random case assignment process are subject

to universal condemnation.”); Jonathan L. Entin, The

Sign of “The Four”: Judicial Assignment and the Rule

of Law, 68 Miss. L.J. 369, 374 (1998) (“Manipulation of

judicial assignments can deprive litigants of their right

to a fair hearing and contravene basic principles of due

process.”).

In sum, while random allotment may not be constitutionally required, the right to an impartial tribunal

includes an assurance that cases will be assigned to

judges “in a manner free from bias or the desire to influence the outcome of the proceedings.” Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987) (Kozinski, J.).

And, when the statutorily mandated method of allocating cases is ignored without explanation, that circumvention of the law at least raises a genuine concern

that some bias or improper interest is at work.

Under these circumstances, “[t]he suggestion that

the case assignment process is being manipulated for

motives other than the efficient administration of justice casts a very long shadow.” Cruz, 812 F.2d at 574.

“Such charges * * * must not remain unexamined and

unanswered.” Ibid; cf. PATCO v. FLRA, 672 F.2d 109,

113 (D.C. Cir. 1982) (finding remand for evidentiary

hearing on allegation of ex-parte contacts “essential”

25

because “the suggestion of behind-the-scenes machinations is intolerable,” and “[t]his shadow on the integrity

of the administrative process cannot be summarily

dismissed”).

Three of the seven Louisiana Supreme Court justices agreed with these principles and would have remanded for an evidentiary hearing below. App., infra,

17a-22a. Due process and the public legitimacy of the

judiciary require an evidentiary hearing so that Texas

Brine may explore whether Judge McDonald’s disproportionate assignment to sinkhole cases—a practice

undeniably at odds with state law—reflects judicial bias warranting recusal.

C. This is a compelling vehicle for review.

This case presents an appealing vehicle to identify

the due process requirement of a hearing once a litigant raises a genuine concern of judicial bias.

First, the issue is cleanly presented. Petitioner explicitly moved for an evidentiary hearing below, arguing that the procedure adopted by the First Circuit

“denies Texas Brine of its rights under the Fourteenth

Amendment to the U.S. Constitution * * * to procedural due process.” App., infra, 109a. It explained that,

having demonstrated to a statistical near-certainty

that “the allocation [of appeals to Judge McDonald]

cannot be attributable to random chance” (app., infra,

100a), “[d]ue process requires that Texas Brine have a

full and fair opportunity to explore and challenge” the

reasons for Judge McDonald’s “non-random selection to

an incredible 31 of 52 appellate panels” in violation of

state law (app., infra, 97a).

But because its motions were denied, Texas Brine

did not receive anything resembling a hearing. See

app., infra, 1a-16a. There can be no dispute that if a

threshold showing of genuine concerns about impar-

26

tiality entitles a litigant to an evidentiary hearing, that

right was denied here.

Second, the Court has jurisdiction pursuant to 28

U.S.C. § 1257(a). See ibid. (providing jurisdiction to review “[f]inal judgments or decrees” of state courts

“where any title, right, privilege, or immunity is specially set up or claimed under the Constitution”).

The Court has long held, under analogous circumstances, that a collateral order is final for purposes of

Section 1257—and thus that review may be had—if the

order decides a federal question in the course of determining which of a State’s courts is the proper venue for

an action.

In Mercantile National Bank v. Langdeau, 371 U.S.

555 (1963), the Court granted certiorari to decide

whether a federal statute controlled the state-court

venue in which a national bank could be sued, “entitl[ing] appellants to have the action transferred” to a

different Texas trial court. Id. at 557. The Court held

that the Texas Supreme Court’s interlocutory order on

venue was sufficiently final for Section 1257 because

the venue issue “is a separate and independent matter,

anterior to the merits and not enmeshed in the factual

and legal issues comprising the plaintiff’s cause of action.” Id. at 558. The Court went on:

We believe that it serves the policy underlying

the requirement of finality in 28 U.S.C. § 1257

to determine now in which state court appellants may be tried rather than to subject them,

and appellee, to long and complex litigation

which may all be for naught if consideration of

the preliminary question of venue is postponed

until the conclusion of the proceedings.

Ibid.; see also American Motorists Ins. Co. v. Starnes,

425 U.S. 637, 638-642 & n.3 (1976) (Court had jurisdic-

27

tion over equal-protection challenge to interlocutory

order on state-court venue “[f]or the reasons stated in”

Langdeau); Burlington Northern R. Co. v. Ford, 504

U.S. 648, 650 & n.* (1992) (same).

The Langdeau principle controls the finality issue

here. Just as in Langdeau, Texas Brine challenges, on

federal grounds, its amenability to proceedings before a

particular state tribunal—here, any tribunal including

Judge McDonald. And, just as in Langdeau, the judicial-bias issue “is a separate and independent matter,

anterior to the merits,” that is better determined up

front, rather than “subject[ing] [the parties] to long and

complex litigation which may all be for naught.” Langdeau, 371 U.S. at 558. The Louisiana courts’ orders are

final under Langdeau.6

6

The Court’s seminal decision in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975), locates the Langdeau line of cases in

the final category of its taxonomy of interlocutory-yet-final orders.

Id. at 483. That category is comprised of cases in which further

state proceedings could moot the federal issue, but “reversal of the

state court on the federal issue would be preclusive of any further

litigation on the relevant cause of action,” and “a refusal immediately to review the state court decision might seriously erode federal policy.” Id. at 482-483.

Reversal of the state court here—requiring transfer of the sinkhole appeals to panels without Judge McDonald—would be equally “preclusive of * * * further litigation” (Cox Broad., 420 U.S. at

482-483) as in the Langdeau line, where the relief sought was

simply transfer of venue to a different state court. See Langdeau,

371 U.S. at 557 (“[T]he only issue for review [is] whether [the federal statute] entitled appellants to have the action transferred to

the state court in Dallas County[.]”); Burlington Northern, 504

U.S. at 649 (taking jurisdiction over interlocutory appeals of party’s motion “to change venue to Hill County, Montana”). And ensuring an impartial tribunal is certainly an important “federal

policy.” Cox. Broad., 420 U.S. at 483; see pp. 15-16, supra. Indeed,

28

The orders of the Louisiana courts are also final

under a separate line of cases finding finality “where

the subsequent proceedings in state court would deny

the federal right for the vindication of which review

was sought.” Chapman v. California, 405 U.S. 1020,

1022 (1972) (Douglas, J., dissenting from denial of certiorari) (citing cases involving double jeopardy and

speedy trial rights); accord Stephen M. Shapiro et al.,

Supreme Court Practice 167 (10th ed. 2013) (collecting

additional cases). Even if Texas Brine were to prevail

in every sinkhole appeal before Judge McDonald, the

denial of a hearing leaves the judge’s statistically

anomalous participation unexplained and shrouded in

uncertainty and mistrust, disserving “the appearance

* * * of impartial justice” that is “necessary to the public legitimacy of judicial pronouncements and thus to

the rule of law itself.” Williams, 136 S. Ct. at 1909.

Judge McDonald’s disproportionate and unexplained

participation itself harms public confidence in the fair

and impartial administration of justice, regardless of

the outcome of the appeals.

As Judge Kozinski put it under analogous circumstances, “[s]uch charges * * * must not remain unexamined and unanswered.” Cruz, 812 F.2d at 574.

“[t]he requirement of [judicial] neutrality has been jealously

guarded by this Court.” Marshall, 446 U.S. at 242.

29

CONCLUSION

The Court should grant the petition.

Respectfully submitted.

PAUL W. HUGHES

JAMES M. GARNER

Counsel of Record

JOSHUA S. FORCE

MICHAEL B. KIMBERLY

STUART D. KOTTLE

Sher Garner Cahill

ANDREW A. LYONS-BERG

Richter Klein &

McDermott Will & Emery LLP

Hilbert, L.L.C.

500 North Capitol Street NW

909 Poydras Street

Washington, DC 20001

28th Floor

(202) 756-8000

New Orleans, LA 70112 phughes@mwe.com

(504) 299-2102

Counsel for Petitioner