Petition — Berry v. Judiciary Commission

SEP 16977

K, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 22 423 «

IN RE: Judge Allen M. Babineaux

Judge B. I. Berry

Judge Lucien C. Bertrand, Jr.

Judge Louis G. DeSonier, Jr.

Judge Edward N. Engolio

Judge John C. Morris

Judge Walter C. Peters.

ON APPEAL FROM THE SUPREME COURT OF

LOUISIANA, OR IN THE ALTERNATIVE,

PETITION FOR WRIT OF CERTIORARI

TO THE LOUISIANA SUPREME COURT

Law Offices of:

NELSON, NELSON & LOMBARD, LTD.

By: John P. Nelson, Jr.

144 Elk Place, Suite 1202

New Orleans, Louisiana 70112

Telephone No. (504) 523-5893

ATTORNEY FOR PETITIONERS

SCOFIELDS’ QUALITY PRINTERS, P. 0. BOX 53096, N. O. LA. 70153 - 604/822-1611

INDEX

I. Opinions Belo

II. Statement of the Grounds on which

the Jurisdiction of this Court is In-

voss

III. Statement of the Cases

„ “ig Bip bcd kn ccc Bgbctecse

IV. Questions Presented .................

<

Constitutional Provisions, Statutes,

and Federal Rules Involved .........

VI. Reasons for Granting Appeal or

Writs of Certiorari ....... DL he kn Ka

VII. Conclusion .............. nn

Appendix A — Opinion of the United States

Supreme Court in Case No. 59,562 titled In

Re Judge Allen M. Babineaux et al. decided

May 16, 1977. Rehearing refused June 17,

—... eee

Appendix B — Code of Judicial Conduct

adopted by the La. Supreme Court on March

5, 1975 to become effective January 1,1976 ....

Appendix C — Opinion of the United States

Supreme Court in Case No. 58,450 titled In

Re Judge Allez M. Babineaux et al. decided

WW ee eee ee ec eceese

Appendix D — Findings of Fact and Conclu-

sion of Law filed by the Judiciary Commis-

sion of Louisiana on March 23, 1977 ........

13a

ii

TABLE OF AUTHORITIES

CASES: Page

Leary vs. United States, 395 U.S. 6, 32-33 (1969) .. 11

Tot vs. United States, 319 U.S. 463, 467(1943) ..... 11

U. S. vs. Romano, 382 U. S. 136, 139 (1965) ........ 11

Weber vs. Aetna Casualty & Surety Com-

pany, 406 U.S. 164, 172 (1972) )ͥyÿõb 13

STATUTES:

r ů T...... ͤ wandix’y 3,7

D 8

CONSTITUTION:

United States Constitution, Fourteenth

r 2.7, 11

CODES:

Code of Judicial Conduct, State of Louisiana

— 1 ¹.AAAůůͤ 2.3. 4.5.7, 10, 12

PUBLICATIONS:

Lr K 8

Commentaries on the Law of England,

Blackstone 259-60 (17660)))))) ewes 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

IN RE: JUDGE ALLEN M. BABINEAUX;

JUDGE B. I. BERRY;

JUDGE LUCIEN C. BERTRAND, IR.;

JUDGE LOUIS d. DeSONIER, IR.:

JUDGE EDWARD N. ENGOLIO;

JUDCE JOHN C. MORRIS;

JUDGE WALTER C. PETERS;

=

ON APPEAL FROM THE SUPREME COURT OF

LOUISIANA, OR IN THE ALTERNATIVE,

PETITION FOR WRIT OF CERTIORARI

TO THE LOUISIANA SUPREME COURT

Seven Louisiana Judges appeal from a decision of

the Louisiana Supreme Court. This decision ordered

that the petitioners be suspended without pay from

their judicial offices for serving on the Board of Direc-

tors of financial institutions.

L

OPINIONS BELOW

The decision of the Louisiana Supreme Court to

which this Appeal, or in the alternative, Writ of Cer-

tiorari is addressed is reported in Volume 346 of the

Southern Reporter, Second Series, pages 676 and

following. A copy of this decision is attached as

Appendix A.

II.

STATEMENT OF THE GROUNDS ON

WHICH THE JURISDICTION OF THIS

COURT IS INVOKED

(A) The decision appealed from is a disciplinary

action brought against the appellants. These judges

have been found guilty of violating Canon 5C(2) of the

Louisiana Code of Judicial Conduct which provides in

pertinent part at:

A judge may hold and manage investments.

including real estate, and engage in other re-

munerative activity but should not serve as

an officer, director, manager, or employee of

any bank, lending institution, homestead or

savings and loan association, insurance com-

pany, public utility and other business

affected with a public interest. (See Appendix

A)

Appellants contended that Canon 5C(2) is invalid

because it is repugnant to the Fourteenth Amendment

of the Constitution of the United States. The decision of

the Supreme Court of Louisiana upheld the Canon.

(B) Appellants also challenge the process by

which they were ultimately ordered to be suspended as

being repugnant to the Fourteenth Amendment to the

Constitution of the United States. The decision of the

Supreme Court of Louisiana upheld this process.

(C) Jurisdiction of this Appeal is conferred on this

Court by Title 28 of the United States Code, Section

1257(2).

(D) Should this Court decide that there is no direct

appeal in this case, jurisdiction for granting the

appellants a Writ of Certiorari is conferred by Title 28

of the United States Code, Section 1257(3).

III.

STATEMENT OF THE CASE

(A) Introduction

The appellants in this action are all duly-elected

Louisiana Judges: Judge Allen M. Babineaux,' 15th

Judicial District Court; Judge B. I. Berry, 5th Judicial

District Court; Judge Lucien C. Bertrand, 15th Judicial

District Court, Division D; Judge Louis G. DeSonier,

Jr., 24th Judicial District Court, Division A; Judge

Edward N. Engolio, 18th Judicial District Court, Divi-

sion C; Judge John C. Morris, 5th Judicial District

Court, Division B: Judge Walter C. Peters, 31st Judicial

District Court. They are faced with suspension from

their judicial offices because they have taken a stand

contrary to Canon 5C(2), a provision of the Louisiana

1 Judge Allen M. Babineaux resigned his board position follow-

the Louisiana Supreme Court decision of May 16, 1977 (See

ing

Appendix A) and hence, is no longer a party to these proceedings.

4

Code of Judicial Conduct that was implemented after

they assumed the bench.“

These judges challenge the constitutionality of the

Canon 5C(2) prohibition. These judges also challenge

the constitutionality of the judicial process which ul-

timately ordered their suspension.

At first glance, the case of these judges may appear

to be easily dismissed as the gripings of a few

members of “the old guard” who are stubbornly refus-

ing to go along with the emerging wave of new judicial

consciousness. Such a casual dismissal would be a

grave mistake. These men recognize and applaud ef-

forts for judicial accountability. However, careful

consideration will reveal that the efforts directed

against these judges have inherent constitutional

flaws that cannot and should not be glossed over — no

matter how popular the cause.

(B) Chronology

On March 5, 1975, the Louisiana Supreme Court

promulgated the Code of Judicial Conduct that con-

2 Canor 5C(2) became effective January 1, 1976. The transcript

of the testimony taken before the Judiciary Commission of Loui-

siana indicates the

e in 908 he eevussed the bene nT: Cr p85

on . P.

N. Engolio became financial in-

tains Canon 5C(2), the subject of this dispute. (Appen-

dix B)

The appellants, along with other Louisiana Judges,

felt that Canon 5C(2) was unfair because, first, it ex-

empted all part-time judges from its prohibition (who

comprise nearly twenty-five percent of the State

Judiciary Tr. 108) and second, the effect of the Canon

was to find them guilty of judicial scandal without the

need to prove any scandal at all. (See Appendix C)

They brought their grievances to the disciplinary

body of the Louisiana Courts, the Judiciary Commis-

sion. The Commission rejected the constitutional

arguments saying that these were for the courts to

decide.

The aggrieved judges then filed a declaratory judg-

ment action in the Louisiana District Court to deter-

mine the constitutionality of the Canon. Before the

District Court could hear the case, the Louisiana

Supreme Court took the case out of the District Court

and brought it directly to themselves in the Supreme

Court. This extraordinary action was taken pursuant

to their rarely exercised supervisory powers.

Now the Louisiana Supreme Court was in the

tenuous position of first having promulgated this

Canon and then having to decide if their promulgation

was constitutionally proper. Thus, they were calling

on themselves to assess the limits of their own power!

Realizing this, the appellants requested that the six

justices who had adopted the Canon recuse

themselves in accordance with the Louisiana Civil

Procedure Article that provides for recusation of a

Supreme Court justice.“ The justices who had

promulgated the Canon refused to recuse themselves

from an adjudication of its constitutionality. Then

perhaps not surprisingly, the justices went on to find

the Canon they promulgated free of any constitutional

infirmities. (Appendix C)

The appellants were then brought before the

Judiciary Commission for violating the Canon. They

all appeared and all admitted being in technical viola-

tion of the Canon. (Appendix D)

The Louisiana Supreme Court met again, turned

aside the constitutional challenges of the appellants

and ordered suspension for non-compliance. (Appen-

dix A)

IV

QUESTIONS PRESENTED Do

1. Can the same agency, in this case

governmental

a Supreme Court, legislatively promulgate a rule,

judicially decide the constitutionality of its own ac-

tions, and then executively enforce that rule?

2. Can judicial scandal be allowed to be presumed

without a shred of supporting evidence and in the face

of contrary evidence?

3 LSA-C.C.P. Article 152 reads as follows:

A judge may recuse himself, whether a motion for his

recusation has been filed by a party or not, in any cause in

which a ground for recusation exists.

On the written application of a district judge, the Supreme

Court may recuse him for any reason which it considers

sufficient.

7

3. Can the Louisiana Supreme Court make rules

regarding the appearance of justice that exempt over

twenty-five percent of the affected judges on grounds

wholly unrelated to the purpose of the rules?

V.

CONSTITUTIONAL PROVISIONS,

STATUTES, AND FEDERAL RULES IN-

VOLVED

The Constitutional Provisions, Statutes, and Rules

involved in this petition are the Fourteenth

Amendment to the United States Constitution; 28

USCA 1257(2); 28 USCA 1257(3) and Canon 5C(2) of the

Code of Judicial Conduct of the State of Louisiana

(Appendix B)

VL

REASONS FOR GRANTING APPEAL OR

WRITS OF CERTIORARI

(A) Allowing the same governmental agency, in

this case the Louisiana Supreme Court, to legislative-

ly promulgate a rule, judicially interpret the con-

stitutionality of the rule, and executively enforce that

rule violates the basics of due process.

(B) Mere legislative fiat may not take the place of

fact in the determination of issues involving life,

liberty, or property.

(C) A state may not treat similarly situated per-

sons differently. Therefore, a rule that exempts a por-

tion of the class from its scope, on grounds unrelated

| al Protection

to its purpose, violates the Equ

Guarantees of the United States Constitution.

A.

Allowing the same agency in this case the

1 Supreme Court to legislatively

promulgate a rule, judicially interpret the

reasonableness of the rule, and executively

enforce that rule violates the basics of due

process.

: law of

Lord Coke, in the most famous rubric of the

disqualification said “aliquis non debet esse judex in

propria causa,” or “no man shall be a judge in his own

case.” 1 Coke Institutes, 141A

Six of the present seven Louisiana Supreme Court

justices adopted the Canon in question in March of

1975. Because of their action, these six justices were

named as defendants in the declaratory judgment ac-

tion that began this case. The action was then removed

from the District Court to the Supreme Court. These

six justices refused to disqualify themselves from the

action in which they were defendants and then decided

that their promulgation of the Canon was reasonable

and not at all constitutionally infirm. Subsequently,

these six justices decided that the Canon was not being

unconstitutionally applied by themselves to the ap-

pellants and enforced it against them.

ethod for

Louisiana law specifically provides a m

recusal of Supreme Court Justices (see prior footnote).

The Louisiana Supreme Court Justices refused to use

this vehicle for substitution but went ahead and heard

the whole case from beginning to end, themselves.

It is obvious that this action is not one that can be

mechanically decided by appropriate precedent. The

court’s opinion covers eleven typewritten pages but

cites only three cases. These are all questions of judg-

ment. Full and fair judgment requires impartial

judges. The appellants are all jurists, they know how

the judicial mind functions, all they want is a fair

hearing before an impartial panel.

Arbitrariness is one of the keystones of this case. To

determine whether a rule or a policy or a practice is ar-

bitrary demands analytical probing and sensitive

weighing of competing interests with as much objec-

tivity as possible. How can these six men, or any other

six men, be expected to dispassionately weigh the ar-

bitrary nature of their own actions?

The appellants made a decision in the beginning of

this litigation not to attack the constitutionality of the

Canon through the Federal Courts despite serious

misgivings about the Louisiana Judicial climate It

was felt that a full adjudication on the District Court

and Appellate Court level would allow full discussion

of the issues. The Supreme Court, however, invoked

their rarely used supervisory powers to deny any

other courts the opportunity to review the action and

decided it all themselves. There was no full, impartial

discussion of the issues.

Our republic is founded on balance — power is not

vested all in one branch of government, the states and

the federal governments share some powers and com-

plement vach other in other areas. How can a person

assess the limits of their own reasonableness? Such

—— eee —

10

action goes against the fundamental fairness that our

constitution embodies.

| ke of the

Blackstone, in his Commentaries, spo

dangers of this very combination of powers in the

judiciary when he said:

“Were it joined with the legislative, the life,

liberty, *. property of the subject would be in

the hands of arbitrary judges, whose decision

would then be regulated only by their own

opinions and not by any fundamenta: prin-

ciples of law, Commentaries on the Law of

England, 259-60 (1765).

The founding fathers realized in creating a separa-

tion of powers that the powers of public officers

should be defined by laws which they, as well as the

people, are obliged to obey.

. These

No man should be a judge in his own case

judges should not be allowed to assess the con-

stitutionality of their own actions. It is not fair. It is

not right. It is not constitutional.

B.

Mere legislative fiat may not take the place of

fact in the determination of issues involving

life, liberty, or property.

Canon 5C(2) was held to have applied to the

appellants because sitting on a board of directors con-

eee “conduct prejudicial to the administration of

justice that brings the judiciary into disrepute.”

11

The appellants disputed the finding of disreputable

or prejudicial conduct and requested any surveys, in-

terviews or other evidence that could be used to

demonstrate that this conduct brought the judiciary

into disrepute. There was no such evidence.

The charges equated sitting on a board of directors

with disreputable or scandalous conduct. But in their

hearings the Judiciary Commissioner’s Director

testified that there had never ever been a complaint

about these judges! (Tr. 111) Not one complaint — yet

they are being charged with scandal, with prejudice.

Someone must be scandalized in order to have scan-

dal. Someone must be prejudiced in order to have pre-

judice. Here no one has been scandalized or prejudic-

ed, yet sitting on a board of directors is equated with

scandal and prejudice. 5 *

This lack of evidence, this presumption of scandal

was challenged in the Louisiana Supreme Court — and

no answer was ever forthcoming. This in effect,

creates an unrebuttable presumption of guilt?

The due process clause of the Fourteenth Amend-

ment sets limits on the power of a state to make proof

of one fact (sitting on a board) evidence of the ultimate

fact of the guilt (judicial scandal): See Tot vs. United

States, 319 U.S. 463, 467 (1943) and U.S. vs. Romano, 382

U.S. 136, 139 (1965).

There must be a rational connection between the fact

proven and the ultimate fact presumed. This is a

criminal rule but it has been relied upon by this court

in civil cases as well. See Leary vs. U.S., 395 U.S. 6, 32-

33 (1969).

3

Does sitting on a board of directors bring the

judiciary into disrepute” as claimed? The answer is

unequivocally no.

Not one of these judges has ever been accused of

misusing his office. Not one of these judges has been

accused of any impropriety whatsoever. The only ac-

cusation is that they sat as a member of a board of

directors.

Without more, the mere fact of sitting on a board of

directors is not evidence of judicial impropriety or

conduct that brings the judiciary into disrepute. To

suspend someone from their duly elected office

because of an unrebuttable presumption of guilt not

supported by any facts is a grave and serious error.

This error, this injustice should be remedied.

C.

_ A state may not treat similarly situated per-

sons differently, therefore, a rule that exempts

a portion of the class from its scope, on

grounds unrelated to its purpose, violates the

Equal Protection Guarantees of the United

States Constitution.

Over twenty-five percent of the judges of Louisiana

are not covered by Canon 5C(2). The purpose of Canon

5C(2) is to insure no one will bring the judiciary into

disrepute; the end is the appearance of propriety.

Seventy-seven judges are exempted because they are

part-time judges and can use the money. (Tr. 108) The

purpose of the rule is appearance of propriety, the ex-

clusion is based on money. Differences in treatment

13

must accord to the end of the rule or else you are

changing the rules in the middle of the game!

This Court requires, at a minimum, that a statutory

classification bear some rational relationship to the

legitimate state purpose. See Weber vs. Aetna Casual-

ty & Surety Company, 406 U.S. 164, 172 (1972). The only

real difference between full and part-time judges is

salary but this difference is unrelated to the purpose of

the Canon and thus cannot be the basis for a special

classification. Is notimpartiality just as important for

those who make forty thousand a year as for those who

make twenty-five?

The “public” who is to be protected by this Canon

surely does not make a distinction between a full and

part-time judge. The risks of conflict are the same,

they are all judges, only the salary differs.

In fact, often part-time judges have more political

influence than full-time judges. Under the circum-

stances, for the Canon to exclude part-time judges is

hardly consonant with the search for judicial proprie-

ty.

In New Orleans, for example, you can easily get on

the elevator in the Civil District Court building with

two men who are judges. One gets off on floor number

two, the other on number three. Both robe and hear

motions in the morning, for lunch go to a board of

director’s brunch at Antoines. One faces suspension,

the other does not. Does anyone think the “public” can

tell the difference between the judge who is classified

as part-time and the one who is classified as full-time

so that they will see in one “judicial impropriety” and

not in the other?

14

This classification does not bear a rational

relationship to the purpose of the Canon and should be

set aside.

VIL.

CONCLUSION

There is a Rennaisance of morality sweeping our in-

stitutions in the wake of corruption in high places. It is

impossible to disagree with the purpose or the

motives of such action — it is laudable. But while no

one can disagree with the ends, our citizens’ rights

must be protected in our choices of means.

No matter how the tide of public sentiment ebbs or

flows — a true, lasting, and fair outcome will be based

on the enduring constitutional principles of fairness,

reasonableness and equality.

Our system is built on the pillars of fairness,

reasonableness and equality. The well intentioned

cannot achieve a better system by sacrificing the very

principles that make the system great, or else the well-

intentioned will end up like Sampson who in his blind

zeal, destroyed the very pillars on which the temple

vested.

The appearance of justice and fairness is important.

But the attempt to bring about the appearance of

justice and fairness must be conducted in a manner

that is both fair and just. Otherwise the appearance of

justice becomes more important than the reality.

We need not, indeed we must not, sacrifice con-

stitutional means in order to achieve honorable ends.

15

The decision of the Louisiana Supreme Court to assess

the limits of its own reasonableness has done just that.

This Appeal, or in the alternative this Writ of Cer-

tiorari, should be accepted by this Court in order that

the appearance of justice and the reality of justice may

be once again reconciled.

Respectfully submitted,

LAW OFFICES OF NELSON,

NELSON & LOMBARD, LTD.

JOHN P. NELSON, JR.

144 Elk Place, Suite 1202

New Orleans, Louisiana 70112

Telephone: 523-5893

ATTORNEY FOR PETITIONERS

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Petition

for Writ of Certiorari has been served on:

William J. Guste, Jr.

Attorney General

State of Louisiana

This ____ day of September, 1977.

JOHN P. NELSON, JR.

VAs

la

APPENDIX A

SUPREME COURT OF LOUISIANA

No. 59,562

IN RE JUDGE ALLEN M. BABINEAUX, FIFTEENTH

JUDICIAL DISTRICT COURT, ET AL.

MONDAY, MAY 16, 1977

CALOGERO, Justice.

The Judiciary Commission of Louisiana, a con-

stitutional body charged with initiating disciplinary

action against judges for, among other things, willful

misconduct relating to official duty.and persistent and

public conduct prejudicial to the administration of

justice that brings the judicial office into disrepute,

determined after preliminary investigation made on

their own motion that respondent judges! had per-

sisted in serving on the Boards of Directors of certain

financial institutions or businesses affected with a

public interest in violation of Canon 5 (C)(2) of the

Code of Judicial Conduct, and notified the respondent

judges that a hearing would be instituted to determine

whether there was cause for disciplinary action as

1 The respondent judges in this are the following:

tee Ae Oe ane Oe th Judicial District Court;

pig dy I. Berry of the Fifth Judicial District Court; Judge Lucien

C. Bertrand, Jr. of the Fifteenth Judicial District Court; Judge

Louis d. DeSonier, Jr. of the Twenty-fourth Judicial District Court;

Judge Edward N. of the Eighteenth Judicial District Court;

Judge John C. Jr. of the Fifth Judicial District Court; and

Judge Walter C. Peters of the Thirty-first Judicial District Court.

provided by Article V, section 25 (C) of the Louisiana

Constitution of 1974.

The judges filed an answer to the complaint in which

they attacked Canon 5 (C)(2) on constitutional

grounds. Independently, they filed a suit for

declaratory judgment in the Civil District Court for

the Parish of Orleans to have the canon declared

unconstitutional. In that proceeding, on application of

the Judiciary Commission of Louisiana, we granted

writs to determine the constitutional question, 336

So.2d 318 (La. 1976), and in a decision of December 13,

1976, we declared Canon 5 (C)(2) of the Code of Judicial

Conduct constitutional. Babineaux v. Judiciary Com-

mission, 341 So.2d 396 (La. 1976) [hereinafter

Babineaux].

In Babineaux we found nonmeritorious the judges’

contention that their constitutional right of due

process and equal protection as well as freedom of

association were offended by the canon. In that deci-

sion we pretermitted the question of whether or not

seryice as a director of a financial institution in viola-

tion of Canon 5 (C)(2) is per se proscribed conduct un-

der Article V, section 25 (C) of the Louisiana Constitu-

tion of 1974. We concluded that this particular ques-

tion was not then properly before the Court, because

the Judiciary Commission which is vested with the in-

itial responsibility of investigating judicial miscon-

duct and, when justified, making appropriate recom-

mendations to this Court for disciplinary action, had

at that time made no finding and/or recommendation.

Subsequent to that decision, the Judiciary Commis-

sion held its hearing in the disciplinary matter, that

3a

hearing having previously been stayed by us pending

resolution of the declaratory judgment action. Each of

the seven respondent judges testified at the hearing.

Following the hearing, the Judiciary Commission

took the matter under advisement and on February 5,

1977 the Commission found that each of respondent

judges “has been and remains in open violation of

Canon 5 (C)(2) of the Code of Judicial Conduct and that

said violation per sé constitutes persistent and public

conduct prejudicial to the administration of justice

that brings the judicial office into disrepute.” The

Commission’s findings of fact and conclusions of law

also stated that “each of respondents has been and is

well aware of the existence of [the] Canon,” that “the

Louisiana Supreme Court recently upheld the con-

stitutionality of the Canon and its applicability to

respondent judges,” that “[e]ach respondent has been

given ample notice and ample opportunity to comply

with the Canon” and has nonetheless “continued to

violate the Canon.” Additionally, it found each

respondent judge guilty of willful misconduct. The

Commission thereupon recommended that each of the

respondent judges be suspended without salary until

such time as he complies with Canon 5 (C)(2) by

resigning his directorship or directorships on the

financial institution on which he is currently serving.

Under Article V, section 25 of the Louisiana Constitu-

tion, this Court must pass upon these recommenda-

tions and it is for this reason that the matter is present-

ly before this Court.

The authority of the Supreme Court to discipline

judges and the Judiciary Commission’s power to

recommend such measures is contained in Article V,

section 25 (C) of the Louisiana Constitution of 1974

which provides:

4a

“On recommendation of the judiciary com-

mission, the supreme court may censure, sus-

pend with or without salary, remove from of-

fice, or retire involuntarily a judge for willful

misconduct relating to his official duty,

willful and persistent failure to perform his

duty, persistent and public conduct pre-

judicial to the administration of justice that

brings the judicial office into disrepute, con-

duct while in office which would constitute a

felony, or conviction of a felony. On recom-

mendation of the judiciary commission, the

supreme court may disqualify a judge from

exercising any judicial function, without loss

of salary, during pendency of proceedings in

the supreme court. On recommendation of the

judiciary commission, the supreme court may

retire involuntarily a judge for disability that

seriously interferes with the performance of

his duties and that is or is likely to become per-

manent. The supreme court shall make rules

implementing this Section and providing for

confidentiality and privilege of commission

proceedings.” (emphasis added) -

The provision has been implemented by Supreme

Court Rule XXIII which grants to the Judiciary Com-

mission the power to make investigations, hold hear-

ings, and advise this Court whether it believes that a

judge is guilty, among other things, of willful miscon-

duct relating to his official duty, or persistent and

public conduct prejudicial to the administration of

justice that brings the judicial office into disrepute.

The Code of Judicial Conduct was adopted by the Court

pursuant to its constitutional supervisory juris-

5a

diction over all other courts, see La. Const. art. V. §5(A)

(1974), and after lengthy deliberation on the need for

greater specificity in some areas of ethical standards.

For detailed historical development of the canon, see

Babineaux, supra. at 399. This Code, like the Canons of

Judicial Ethics which it replaced, is binding upon

members of the judiciary. In re Haggerty, 257 La. 1,241

So. ad 469 (1970). Canon 5 (C)(2) of the Code provides in

pertinent part that:

“ag judge may hold and manage investments,

including real estate, and engage in other

remunerative activity but should not serve as

an officer, director, manager, or employee of

any bank, lending institution, homestead or

savings and loan association, insurance com-

pany, public utility, and otter businesses

affected with a public interest.“

The issue now before us is the merit of the recommen-

dation of the Judiciary Commission that the seven

respondent judges, who retain positions proscribed by

Canon 5, be suspended without salary until they com-

ply with the canon by resigning their directorships.

The respondent judges in these proceedings again

contend that the canon violates the equal protection

guarantees of the federal and state constitutions, that

it violates substantive and procedural due process

rights of the judges because it is an arbitrary and

unreasonable exercise of state power, and that it

violates the first amendment because it literally

establishes guilt by association alone. They acknowl-

edge that this Court has already passed on these

constitutional challenges but submit that the assump-

6a

tions that provided the basis for finding this canon to

be a reasonable exercise of power are not substan-

tiated by the facts presented at the Judiciary Commis-

sion hearing. They contend further that, even if the

canon passes muster on the constitutional challenges,

disobedience of it does not constitute “willful miscon-

duct relating to his official duty” or “persistent and

public conduct prejudicial to the administration of

justice that brings the judicial office into disrepute”

either as a per se rule or as applied on a case by case

basis to each of them. They further contend that the

fact that they have taken full exercise of their legal

rights to challenge the canon, standing alone, cannot

be considered a breach of either of the constitutional

prohibitions because such a holding would exert a

chilling effect on the free and full exercise of the right

to challenge the rules.

The matters before us for present consideration

therefore are limited. They are 1) whether we should

reconsider, as requested by respondents, the con-

stitutional issues already ruled upon adversely to the

judges in the earlier decision, in light of the record

which has been made up before the Judiciary Commis-

sion; 2) whether, assuming that Canon 5 (C)(2) is again

held constitutional, their conduct in desisting from

resigning their respective positions constitutes

grounds under Article V, section 25 (C) of the Constitu-

tion for disciplinary action; and 3) assuming we reach

the issue, whether and to what extent respondents

should be disciplined.

Armed with the final judgment of this Court holding

the canon constitutional, the Judiciary Commission at

the hearing presented no evidence other than proof

7a

that the respondent judges were persisting in

violating the canon by remaining as directors on their

respective boards. The judges, on the other hand,

presented unopposed testimony supportive of their

contention that there was no substantial conflict or

risk of conflict between their duties as judges and as

directors, that litigation in their respective courts by

institutions on whose board they sat was rare or non-

existent, that they did not solicit business for the

respective institutions, that they preferred not to be

denied their freedom of“association, and that resign-

ing would constitute a financial hardship for them.

Respondents’ first contention is that the rationale on

which the Court found the canon constitutional was

shown by them to be unfounded in their particular

situations, and the canon is therefore unconstitutional

as it is applied to them. We have found the restriction

neither unreasonable nor arbitrary on its face because

it serves to reduce the possibility that a judge would,

or would seem to, use the prestige of his judicial office

to attract business for the financial institution, to

eliminate the potential conflict between a director's

fiduciary duty to the corporation and his judicial

duties, and to lessen the possibility of conflict of in-

terest for the judge revolving around litigation before

the court. The judges argue that they have overcome

the presumption that the statute is unconstitutional as

to them, because they have shown that none of the

financial institutions involved gives its directors the

responsibility of soliciting new accounts, that none

have brought in any new accounts (other than family

members), and that very seldom have any of these

judges had to recuse themselves because of litigation

in their court by their financial institutions. We find

„„

—— ae ee. eS

8a

that this showing does not overcome the presumption

that the restriction is constitutional as it is applied to

them.

Furthermore, our judgment in the declaratory judg-

ment suit holding the canon constitutional is final. We

will not in this litigation reconsider the issues decided

there. Even were we inclined to do so, nothing

presented by respondents convinces us that we erred

in that original determination. This matter has

already been resolved.

Respondents’ second contention, that violation of

Canon 5(C)(2), standing alone, does not fall within the

conduct proscribed by Article V, section 25(C)

warranting disciplinary sanctions upon recommen-

dation of the Judiciary Commission, has not yet been

answered by this Court because that question was

pretermitted in the earlier opinion. The issue raised

here is whether the retention of board membership on

a named financial institution, in direct conflict with

the canon of the Code of Judicial Conduct, constitutes

either “willful misconduct relating to his official

duty” or “persistent and public conduct prejudicial to

the administration of justice that brings the judicial

office into disrepute” so as to be a ground for dis-

cipline under the constitutional power of this Court.

See La. Const. art. V, §25(C) quoted above. The Com-

mission found that the respondents’ retention of these

proscribed positions, after this Court’s recent judg-

ment upholding the canon’s constitutionality and

despite ample opportunity to comply, constituted both

willful misconduct and conduct prejudicial to the ad-

ministration of justice that brings the judicial office

into disrepute.

We essentially agree with the Commission’s con-

clusion for the following reasons. This Court has the

constitutional authority, power and duty under Arti-

cle V, section 5(A) to supervise all the courts of this

state, with the right to establish procedural and ad-

ministrative rules not in conflict with law, and the

right to adopt standards of ethical conduct for judges.

We have exercised that authority by adopting the Code

of Judicial Conduct effective January 1, 1976. Included

in that Code of Judicial Conduct is the canon here at

issue which prohibits judges serving as directors of

banks, homesteads and other businesses affected with

a public interest. We have determined that this car. 1,

Canon 5(C)(2), is constitutional. The Code of Judicial

Conduct is binding on members of the judiciary. In re

Haggerty, supra. Respondent judges have violated the

canon, albeit for reasons which in their judgment re-

quired them to do so. *

We find it unnecessary to decide whether what they

have done by continuing to serve and refusing to

resign is willful misconduct relating to their official

duties, because we are satisfied that their conduct falls

within the other constitutional proscription relied

upon by the Judiciary Commission, namely, that it is

persistent and public conduct prejudicial to the ad-

ministration of justice that brings the judicial office

into disrepute. The conduct is undeniably persistent

and, contrary to respondents’ positions, it is also

public. Even without the publicity attendant to this

litigation, respondents’ service on boards of directors

of financial institutions (banks, homesteads, etc.) was

and is open and cognizable to those members of the

public, and the bar, with sufficient interest or inclina-

tion to want to know. In our view it is also prejudicial

10a

to the administration of justice bringing the judicial

office, and the judiciary in general, into disrepute, to

have judges who are constitutionally subject to the

supervision of this Court deliberately, continuously

and openly refusing to comply with a valid canon of

ethics.

Rules, including rules of judicial conduct, are made

to be followed, not disregarded. There would have been

little purpose in the adoption of the Code of Judicial

Conduct if they were to be merely hortatory. As was

stated by the Supreme Court of Oregon in In re Han-

non, 214 Or. 51, 59, 324 P.2d 753, 756 (1958):

“The rules promulgated by this court concern-

ing professional and judicial ethics are not

merely pious exhortations. They were es-

tablished to be obeyed and they create rights

corresponding to the duties imposed.”

Judges are not merely elected public officials. Their

role in the administration of justice makes them a

special breed. The administration of justice requires

adherence by the judiciary to the highest ideals of per-

sonal and official conduct. If judges openly flaunt the

legal and constitutionally sanctioned and adopted

Canons of the Code of Judicial Conduct, there is no

question but that such persistent and public conduct is

prejudicial to the administration of justice and that it

does bring the judicial office into disrepute.

Having found that respondent judges’ conduct con-

stitutes grounds under Article V, section 25(C) of the

1974 Louisiana Constitution for disciplinary action,

we need turn to the question of the extent to which

respondents should be disciplined.

lia

We are not unmindful of the fact that these respon-

dent judges have violated the canon primarily in order

to have their rights fully and finally tested in court.

And we are aware of nothing in the backgrounds of

these fine judges or in the manner in which they have

conducted their respective offices except such ag is ex-

emplary. They are good judges who are being required

to suffer personal and economic deprivation brought

on by evolving concepts of ethical propriety. As we

have already pointed out, serving as members of

boards of directors of these institutions had been per-

mitted until relatively recently.

It is therefore with a degree of reluctance but with a

commitment to duty that we are constrained to take

disciplinary action against the respondent judges. We

do so purely and simply to enforce Canon 5(C)(2), a

function which is our constitutional duty.

Article V, section 25(C) of the 1974 Louisiana Con-

stitution, appropriate to this case, permits censure or

suspension with or without salary. Censure we deem

inappropriate at this time, because the judges were in

apparent good faith belief that their refusal to abide by

Canon 5(C)(2) did not amount to constitutional cause

for disciplinary proceedings against them. We are un-

willing to censure them for having chosen to defend

their view of the constitution by the present proceed-

ings. Nevertheless, (pretermitting whether censure or

other disciplinary sanction, in addition to suspension

from office without salary might be appropriate if

respondents persist hereafter in violating the canon)

in order to enforce our ruling, the discipline we now

choose to impose is suspension from office without

salary, subject to a grace period of thirty days from the

ee i Se

* ee ee en

date of finality of this judgment. During such grace

period they will have the opportunity to resign their

positions as members of the board of directors of their

respective financial institutions. If, at the expiration

of that thirty day period, any of the respondents still

have not complied with the canon, by resigning their

board positions, they shall be suspended until such

time as they do so.

For these reasons, the recommendation of the

Judiciary Commission that the seven respondent

judges be suspended without pay until they comply

with Canon 5(C)(2) of the Code of Judicial Conduct is

adopted. Such action, however, shall be suspended for

thirty days from the date of finality of this judgment

and then shall be imposed only on those judges who

have not come into compliance by that date.

Respondents are reserved the right to apply for a

rehearing.

SUMMERS, Justice (concurring in part and dissent-

ing in part).

While I agree with the reasons assigned for finding

that the respondent judges have violated Canon

5(C)(2) of the Code of Judicial Conduct, I am of the

opinion that they should not be suspended without pay

until they comply. In my view censure is more ap-

propriate.

13a

APPENDIX B

SUPREME COURT OF LOUISIANA

ORDER

[Filed: March 5, 1975]

Pursuant to this court’s supervisory jurisdiction

over the courts of the state, the court adopts the follow-

ing Code of Judicial Conduct provisions for the proper

guidance and protection of the justices and judges of

the courts of record of Louisiana, effective January 1,

1976, replacing the Canons of Judicial Ethics adopted

October 13, 1960: :

CANON 1

A Judge Should Uphold the Integrity and In-

dependence of the Judiciary

An independent and honorable judiciary is in-

dispensable to justice in our society. A judge should

participate in establishing, maintaining, and enfor-

cing, and should himself observe, high standards of

conduct so that the integrity and independence of the

judiciary may be preserved. The provisions of this

Code should be construed and applied to further that

objective. As a necessary corollary, the judge must be

protected in the exercise of his judicial independence.

_—

14

CANON 2

A Judge Should Avoid Impropriety and the

Appearance of Impropriety in All His Ac-

tivities

A. Ajudge should respect and comply with the law

and should conduct himself at all times in a manner

that promotes public confidence in the integrity and

impartiality of the judiciary.

B. A judge should not allow his family, social, or

other relationships to influence his judicial conduct or

judgment. He should not lend the prestige of his office

to advance the private interest of others; nor should he

convey or permit others to convey the impression that

they are in a special position to influence him. He

should not testify voluntarily as acharacter witness.

CANON 3

A Judge Should Perform the Duties of His Of-

fice Impartially and Diligently

The judicial duties of a judge take precedence over

all his other activities. His judicial duties include all

the duties of his office prescribed by law. In the perfor-

mance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

(1) A judge should be faithful to the law and

maintain professional competence in it. He

should be unswayed by partisan interests,

public clamor, or fear of criticism.

(2)

(3)

(4)

(5)

(6)

15a

A judge should maintain order and

decorum in proceedings before him.

A judge should be patient, dignified, and

courteous to litigants, jurors, witnesses,

lawyers, and others with whom he deals in

his official capacity, and should require

similar conduct of lawyers, and of his staff,

court officials, and others subject to his

direction and control.

Except as permitted by law, a judge should

not permit private or ex parte interviews,

arguments or communications designed to

influence his judicial action in any case,

either civil or criminal. A judge should not

accept in any case briefs, documents or

written communications intended or

calculated to influence his action unless

the contents are promptly made known to

all parties. Judges of appellate courts

should also avoid all actions or language

which might indicate to counsel, litigants

or any member of the public, the particular

member of the court to whom acase is allot-

ted or assigned for any purpose. Similar

circumspection should be exacted on the

part of court officers, clerks and

secretaries.

A judge should dispose promptly of the

business of the court.

A judge should abstain from public com-

ments about a pending or impending

proceeding in any court, and should re-

16a

quire similar abstention on the part of

court personnel subject to his direction and

control. 'This subsection does not prohibit

judges from making public statements in

the course of their official duties or from

explaining for public information the

procedures of the court.

A judge should prohibit broadcasting,

televising, recording, or taking photo-

graphs in the courtroom and areas im-

mediately adjacent thereto at least during

sessions of court or recesses between

sessions, except that a judge may

authorize:

(a) the use of electronic or photographic

means for the presentation of

evidence, for the perpetuation of a rec-

ord for the court or for counsel, or for

other purposes of judicial administra-

tion;

(b) the broadcasting, televising, recor-

ding, or photographing of investitive

or ceremonial proceedings;

(c) the photographic or electronic recor-

ding and reproduction of appropriate

court proceedings under the following

conditions:

(i) the means of recording will not

distract participants or impair

the dignity of the proceedings;

17a

(ii) the parties have consented, and

the consent to being depicted or

recorded has been obtained from

each witness appearing in the

recording and reproduction;

(iii) the reproduction will not be ex-

hibited until after the proceeding

has been concluded and all direct

appeals have been exhausted;

and

(iv) the reproduction will be ex-

hibited only for instructional

purposes in educational in-

stitutions.

B. Administrative Responsibilities.

(1)

(2)

(3)

A judge should diligently discharge his

administrative responsibilities, maintain

professional competence in judicial ad-

ministration, and facilitate the perfor-

mance of the administrative respon-

sibilities of other judges and court officials.

A judge should require his staff and court

officials subject to his direction and control

to observe the standards of fidelity and

diligence that apply to him.

A judge should take or initiate appropriate

disciplinary measures against a judge or

lawyer for unprofessional conduct of

which the judge may become aware.

OT

18a

(4) A judge should not make unnecessary

appointments. All appointments should be

made on an impartial basis, with a view of

selecting competent persons of good moral

character. He should avoid appointments

which tend to create suspicion of im-

propriety. He should not approve compen-

sation of appointees beyond the fair value

of services rendered.

C. Recusatior. The recusation uf judges is govern-

ed by law.

CANON 4

A Judge May Engage in Activities to Improve

the Law, the Legal System, and the Ad-

ministration of Justice

A judge, subject to the proper performance of his

judicial duties, may engage in the following quasi-

judicial activities, if in doing so he does not cast doubt

on his capacity to decide impartially any issue that

may come before him:

A. He may speak, write, lecture, teach, and par-

ticipate in other activities concerning the law,

the legal system, and the administration of

justice.

B. He may appear at a public hearing before an ex-

ecutive or legislative body or official on matters

concerning the law, the legal system, and the

administration of justice, and he may otherwise

consult with an executive or legislative body or

official, but only on matters concerning the

administration of justice.

19a ‘

C. He may serve as a member, officer, or director of

an organization or governmental agency

devoted to the improvement of the law, the legal

system, or the administration of justice. He may

assist such an organization in raising funds and

may participate in their management and in-

vestment, but should not personally participate

in public fund raising activities. He may make

recommendations to the public and private

fund-granting agencies on projects and

programs concerning the law, the legal sys-

tem, and the administration of justice.

CANON 5

A Judge Should Regulate His Extra-Judicial

Activities to Minimize the Risk of Conflict

with His Judicial Duties

A. Avocational Activities. A judge may write, lec-

ture, teach, and speak on non-legal subjects, and

engage in the arts, sports, and other social and

recreational activities, if such avocational ac-

tivities do not detract from the dignity of his of-

fice or interfere with the performance of his

judicial duties.

B. Civic and Charitable Activities. A judge may

participate in civic and charitable activities

that do not reflect adversely upon his impar-

tiality or interfere with the performance of his

judicial duties. A judge may serve as an officer,

director, trustee, or non-legal advisor of an

educational, religious, charitable, fraternal, or

civic organization not conducted for the

We i i te rr

uni rr

a en

—

I OE oe . ⁰˙m»-˙jC ꝛ˙

economic or political advantage of its mem-

bers, subject to the following limitations:

(1) A judge should not serve if it is likely that

(2)

the organization will be engaged in pro-

ceedings that would ordinarily come before

him or will be regularly engaged in adver-

sary proceedings in any court.

A judge should not solicit funds for any

educational, religious, charitable, frater-

nal, or civic organization, or use or permit

the use of the prestige of his office for that

purpose, but he may be listed as an officer,

director, or trustee of such an organiza-

tion. He should not be a fund raising

speaker or the guest of honor at an or-

ganization’s fund raising events, but he

may attend such events.

C. Financial Activities.

(1)

(2)

A judge should refrain from financial and

business dealings that tend to reflect

adversely on his impartiality, interfere

with the proper performance of his judicial

duties, exploit his judicial position, or in-

volve him in frequent transactions with

lawyers or persons likely to come before

the court on which he serves.

Subject to the requirement of subsection

(1), a judge may hold and manage in-

vestments, including real estate, and

engage in other remunerative activity but

(3)

(4)

(5)

21

should not serve as an officer, director,

manager, or employee of any bank, lend-

ing institution, homestead or savings and

loan association, insurance company,

public utility, and other businesses

affected with a public interest.

—

A judge should manage his investments

and other financial interests to minimize

the number of cases in which he is dis-

qualified. As soon as he can do so without

serious financial detriment, he should

divest himself of investments and other

financial interests that might require fre-

quent recusation.

A judge or a member of his family residing

in his household should not accept any

gifts or favors which might reasonably

appear as designed to affect his judgment

or influence his official conduct.

Information acquired by a judge in his

judicial capacity should not be used or dis-

closed by him in financial dealings or for

any other purpose not related to his judicial

duties.

Arbitration. A judge should not act as an ar-

bitrator or mediator.

Extra-judicial Appointments. A judge should

not accept appointment to a governmental com-

mittee, commission, or other position that is

concerned with issues of fact or policy on

_ *r r

matters other than the improvement of the law.

the legal system, or the administration of

justice. A judge, however, may represent his

country, state, or locality on ceremonial occa-

sions or in connection with historical, educa-

tional, and cultural activities.

CANON 6

A Judge Should Accept Compensation for

Quasi-Judicial and Extra-Judicial Activities

Only under Restricted Circumstances

A judge may receive compensation and reimburse-

ment of expenses for the quasi-judicial and extra-

judicial activities permitted by this Code, ifthe source

of such payments does not give the appearance of in-

fluencing the judge in his judicial duties or otherwise

give the appearance of impropriety, subject to the

following restrictions: '

A. Compensation. Compensation should not ex-

ceed a reasonable amount nor should it exceed

what a person who is not a judge would receive

for the same activity.

B. Expense Reimbursement. Expense reimburse-

ment should be limited to the actual cost of

travel, food, and lodging reasonably incurred by

the judge and, where appropriate to the occa-

sion, by his spouse. Any payment in excess of

such an amount is compensation.

23a

CANON 7

A Judge Should Refrain from Political Activi-

ty Inappropriate to His Judicial Office

A. Political Conduct in General.

(1) A judge or a candidate for election to

judicial office should not:

(a) act as a leader or hold any office in a

political organization;

(b) make speeches for a political

organization or candidate or publicly

endorse a candidate for public office;

(c) solicit funds for or pay an assessment

or make a contribution to a political

organization or candidate, attend

political gatherings, or purchase

tickets for political party dinners, or

other functions, except as authorized

in subsection A(2);

(2) A judge holding an office filled by public

election between competing candidates, or

a candidate for such office, may, only in-

sofar as permitted by law, attend political

gatherings, speak to such gatherings on

his own behalf when he is a candidate for

election or re-election, identify himself as a

member of a political party, and contribute

to a political party or organization.

—

24a

(3) A judge should resign his office when he

becomes a candidate either in a party

primary or in a general election for a non-

judicial office, except that he may continue

to hold his judicial office while being acan-

didate for election to or serving as a

delegate in a state constitutional conven-

tion, if he is otherwise permitted by law to

do so.

(4) A judge should not engage in any other

political activity except on behalf of

measures t. improve the law, the legal sys-

tem, or the administration of justice.

Campaign Conduct.

A candidate, including an incumbent judge, for

a judicial office that is filled either by public

election between competing candidates or on

the basis of a merit system election:

(a) should maintain the dignity appropriate to

judicial office, and should encourage mem-

bers of his family to adhere to the same

standards of political conduct that apply to

him;

(b) should prohibit public officials or

employees subject to his direction or con-

trol from doing for him what he is

prohibited from doing under this Canon;

and he should not allow any other person to

do for him what he is prohibited from doing

under this Canon;

(c) should not make pledges or promises of

conduct in office other than the faithful and

impartial performance of the duties of the

office; nor should he misrepresent his iden-

tity, qualifications, present position, or

other fact.

Compliance with the Code of Judicial Conduct

Anyone, whether or not a lawyer, who is an officer of

a court of record performing judicial functions,

including an officer such as a judge ad hoc, referee,

special master, court commissioner, or magistrate, is

a judge for the purpose of this Code. All judges should

comply with this Code except as provided below.

A. Part-time Judge. A part-time judge is a judge

who serves on a continuing or periodic basis,

but is permitted by law to devote time to some

other profession or occupation and whose com-

pensation for that reason is less than that of a

full-time judge. A part-time judge:

(1) is not required to comply with Canon 5C(2),

5D, and 5E;

(2) should not practice law in the court on

which he serves or in any court subject to

the appellate jurisdiction of the court on

which he serves, or act as a lawyer in a

proceeding in which he has served as a

judge or in any other proceeding related

thereto.

1 ˙·.⁰w ü —

Pᷣ ² ü ͥuu!ͤrͤ ⁹ . dSnnt̃è , ꝗ AAA % èÄͤmũ baꝓꝓ mc —w”-ç᷑¾ P

B. Judge Pro Tempore. A judge pro tempore is a

person who is appointed to act temporarily as a

judge.

(1) While acting as such, a judge pro tempore

is not required to comply with Canon 5C(2),

5C(3), 5D, and 5E.

(2) A person who has been a judge pro tempore

should not act as a lawyer in a proceeding

in which he has served as a judge or in any

other proceeding related thereto.

C. Retired Judge. A retired judge is not governed

by the provisions of this Code, except when he is

sitting by assignment and then he shall be sub-

ject to the rules applicable to a judge pro tem-

pore.

Committee on Judicial Ethics

To the end that these canons may be properly inter-

preted, and in order to provide a forum to receive in-

quiries from members of the judiciary related to the

interpretation of these canons, the Supreme Court

Committee on Judicial Ethics is hereby created. The

function of this Committee shall be limited to the

issuance of advisory opinions in response to inquiries

from any judge insofar as these canons may affect

him.

The Committee shall consist of nine members, as

follows:

(a)

(b)

(c)

(d)

(e)

(f)

The Chief Justice and one other member of the

Supreme Court;

The Chairman of the Conference of Court of

Appeal Judges and one other Court of Appeal

judge;

The President of the District Judges Associa-

tion and one other District Judge;

The President of the City Judges Association;

The Judicial Administrator; and

The President of the Louisiana State Bar

Association.

The members of said Committee shail be selected

and appointed in the following manner and for the

terms indicated:

(a)

(b)

(c)

(d)

The Chief Justice of the Supreme Court shall

always be a member and shall be chairman dur-

ing his term of office as Chief Justice:

The Supreme Court shall select an Associate

Justice who shall serve for a term of two years:

The Conference of Court of Appeal Judges shall

select one member to serve on the Committee

for two years:

The District Judges Association shall select

one member to serve on the Committee for two

years;

s Sx

(e) The Chairman of the Conference of Court of

Appeal Judges, the President of the District

Judges Association, the President of the City

Judges Association, the Judicial Ad-

ministrator, and the President of the Louisiana

State Bar Association shall, ex officio, be

members of the Committee and shall serve dur-

ing their respective terms of office.

The Judicial Administrator shall be Secretary of the

Committee. The Committee shall make its own rules

and select members to serve in such other offices as it

creates.

The Committee shall act upon all inquiries as

promptly as the nature of the case requires.

Adopted by the court this 5th day of March, A.D.,

1975, to become effective January 1, 1976.

New Orleans, Louisiana.

/s/ JOE W. SANDERS

Joe W. Sanders,

Chief Justice

/s/ FRANK W. SUMMERS

Frank W. Summers,

Associate Justice

/s/ MACK E. BARHAM

Mack E. Barham,

Associate Justice

/s/ ALBERT TATE, JR.

Albert Tate, Jr.,

Associate Justice

/s/ JOHN A. DIXON, JR.

John A. Dixon, Jr.,

Associate Justice

/s/ PASCAL F. CALOGERO, JR.

Pascal F. Calogero, Jr.,

Associate Justice

/s/ WALTER F. MARCUS, JR.

Walter F. Marcus, Jr.,

Associate Justice

l

30a

APPENDIX C

SUPREME COURT OF LOUISIANA

JUDGE ALLEN M. BABINEAUX, ET AL

versus NO. 58,450

JUDICIARY COMMISSION OF LOUISIANA, ET AL

ON WRIT OF CERTIORARI TO THE CIVIL DIS-

TRICT COURT FOR THE PARISH OF ORLEANS.

Monday, December 13, 1976

SANDERS, Chief Justice.

Ten Louisiana judges filed suit in the district court

for a declaratory judgment that Canon 5C(2) of the

Louisiana Code of Judicial Conduct (1975), prohibiting

judges from serving on the board of directors of finan-

cial institutions, is unconstitutional. All but one of the

judges presently hold positions on the board of direc-

tors of banks and other financial institutions. On

application of the Judiciary Commission of

Louisiana, alleging that the constitutionality of the

canon was at issue, we granted writs to determine the

constitutional question. La., 336 So.2d 218 (1976).

Canon 5C(1) and (2) of the Louisiana Code of Judicial

Conduct (1975) provides:

“(1) A judge should refrain from financial and

business dealings that tend to reflect

adversely on his impartiality, interfere

with the proper performance of his

3ia

judicial duties, exploit his judicial posi-

tion, or involve him in frequent trans-

actions with lawyers or persons likely to

come before the court on which he serves.

(2) Subject to the requirement of subsection

(1), a judge may hold and manage in-

vestments, including real estate, and

engage in other remunerative activity

but should not serve as an officer, direc-

tor, manager, or employee of any bank,

lending institution, homestead or sav-

ings and loan association, insurance

company, public utility, and other busi-

nesses affected with a public interest.”

Specifically, the petitioners assert that Canon 5C(2)

violates the due process clauses of the Fourteenth

Amendment to the United States Constitution and of

Article 1, Section 2 of the Louisiana Constitution

(1974). Petitioners argue that the canon unduly

restricts their right to pursue an occupation.

Petitioners also assert that the canon violates the

Equal Protection clause of the Fourteenth Amend-

ment in that it does not apply to part-time judges or to

membership on the boards of directors of all types of

businesses.

Finally, petitioners assert that the canon abridges

their freedom of association in violation of the First

Amendment to the United States Constitution.

The canon has its roots in the legal history of our

State. On October 13, 1960, the Louisiana Supreme

Court adopted for the first time canons of judicial

on RPT SOS Le ea eae Se eae

32a

ethics “for the proper guidance and protection of the

Justices and Judges of the courts of record of Loui-

siana.” See 141 So.2d XXXI. The adoption of the canons

climaxed a concerted effort of leaders of the bench and

bar to secure formal guidance for judicial conduct.

Canon IV provided generally that a judge’s official

conduct should be free from impropriety and the

appearance of impropriety. More specifically, Canon

XVIII provided:

“A judge should avoid giving ground for

/ any reasonable suspicion that he is utilizing

the power of prestige of his office to persuade

or coerce others to patronize or contribute,

either to the success of private business ven-

tures, or to charitable enterprises. He should,

therefore, not enter into such private business,

or pursue such a course of conduct, as would

justify such suspicion, nor use the power of

his office or the influence of his name to

promote the business interests of others; he

should not personally solicit for charities, nor

should he enter into any business relation

which, in the normal course of events

reasonably to be expected, might bring his

personal interest into conflict with the impar-

tial performance of his official duties.”

On June 17, 1971, the Supreme Court Committee on

Judicial Ethics formally ruled that membership on the

board of directors of a bank violated Canons IV and

XVIII of the Canons of Judicial Ethics.

On March 15, 1973, the Chief Justice appointed a 22-

member committee, composed of leaders of the bench

and bar, to prepare a new code of judicial conduct in

light of subsequent developments, including the

publication of a new code of judicial conduct by the

American Bar Association. After extensive delibera-

tion, the committee recommended retention of the

prohibition against service by judges on boards of

financial institutions but recommended more specific

language, that now contained in Canon 5C(2). The

committee also recommended a grandfather clause,

that is, aclause allowing judges already on the boards

of financial institutions to continue to serve but bar-

ring new memberships.

On March 5, 1975, almost two years after the com-

mittee began its work, this Court adopted the Code of

Judicial Conduct substantially as recommended, in-

cluding Canon 5C, but rejected the ———— clause.

See 308 So.2d XXXIV.

Due Process

The petitioners first argue that Canon 5C(2) unduly

restricts their right to pursue an occupation and thus

violates their rights to liberty and property protected

by the due process clauses of both the state and federal

constitutions.

This argument addresses what is generally termed

substantive due process. Substantive due process

may be broadly defined as the constitutional guaran-

ty that no person shall be arbitrarily deprived of his

life, liberty, or property. The essence of substantive

due process is protection from arbitrary and unrea-

sonable action. Poe v. Ullman, 367 U.S. 497, 81 S.Ct.

1752, 6 L.Ed.2d 989 (1961); Galvan v. Press, 347 U.S. 522,

74 S.Ct. 737, 98 L.Ed. 911 (1954); 16 Am.Jur.2d, Con-

stitutional Law, § 550, p. 946.

—

34a

The State Constitution vests in the Supreme Court of

Louisiana general supervisory jurisdiction over all

other courts, with authority to establish procedural

and administrative rules not in conflict with law. Art.

7, § 10, Const. (1921); Art. 5. § 5, Const. (1974). Thus, the

petitioners concede that the Supreme Court has

general authority to adopt rules regulating the con-

duct of judges.

A director occupies a fiduciary relation to the cor-

poration and its stockholders. LSA-R.S. 12:91;

Williams v. Fredericks, 187 La. 987, 175 So. 642 (1937);

Roussel Pump & Electric Co. v. Sanderson, La. App.,

216 So.2d 650 (1968); House of Campbell v. Campbell,

La. App., 172 So.2d 727 (1965). The directors manage

the corporate affairs and are under a duty to use their

best efforts to promote the interests of the corporation.

LSA-R.S. 12:81, 19 C.J.S., Corporations, § 764, p. 112.

A judge in the exercise of his judicial duties oc-

cupies a unique position. The nature of his office im-

poses upon him restrictions with respect to the extent

that he can engage in the varied activities of business

life. 46 Am.Jur.2d, Judges, § 51, p. 128. Canon 5, as a

whole, is designed to minimize the risk of conflict

between a judge’s extra-judicial activities and his

judicial duties. Canon 5C(2) promotes this objective. A

similar canon is in effect in a number of other states

and in the federal courts. See Code of Judicial Conduct

for United States Judges, Canon 5, 28 U.S.C. 455.

The risk of conflict is substantial. As a director, a

judge may use or appear to use the power and prestige

of his judicial office to attract business for the cor-

poration. Although not intentionally exerted, his in-

fluence upon litigants and potential litigants defies

measurement.

The petitioners’ contention that a directorship is a

neutral position is untenable. It overlooks the fact that

a director owes a fiduciary duty to the corporation. In

practical terms, this means a duty to efficiently

manage its affairs and promote its business.

A second source of conflict is in litigation. Litiga-

tion by financial institutions is acommon occurrence.

The corporation may become a litigant in the court on

which the judge-director serves or have a business

relation with a litigant in that court. In either situa-

tion, problems arise pertaining to the recusal, or dis-

qualification, of the judge. See LSA-C.C.P. Art. 151.

We conclude that the restriction on directorships is

neither arbitrary nor unreasonable. Hence, it does no

violence to substantive due process.

The petitioners also complain of the denial of

procedural due process.

Procedural due process requires that all

proceedings directed toward the deprivation of life,

liberty, or property be conducted in a manner consis-

tent with essential fairness. Among the requirements

are notice of the proceeding and a fair opportunity to

defend. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4

L.Ed.2d 1307 (1960); 16 Am.Jur.2d, Constitutional Law.

§ 548, p. 941.

On May 28, 1976, the Judiciary Commission notified

the petitioners that under Louisiana Supreme Court

Rule 23, the Commission would determine the

applicability of Canon 5C(2) to them pursuant to an

evidentiary hearing. The Judiciary Commission sub-

sequently set the hearing for August 27, 1976. Because

of the pendency of these proceedings, the hearing was

delayed.

Petitioners make no attack upon the adequacy of the

notice. They do complain of the inadequacy of the

procedures, especially those for legal counsel, and

assert that the Administrative Procedure Act (LSA-

R.S. 49:951 et seq.) is applicable.

LSA-R.S. 49:951(2) expressly provides:

Agency means each state board, commis-

sion, or department which makes rules,

regulations, or policy, or formulates, or issues

decisions or orders pursuant to, or as directed

by. or in implementation of the constitution or

laws of the United States or the constitution

and statutes of Louisiana, except the

legislature or any branch, committee, or of-

ficer thereof and the courts.”’ (Italics ours.)

The term courts in the above provision means the

judicial branch of state government. See Art. 5. La.

Const. 1974. The Judiciary Commission is an indepen-

dent. disciplinary body in the judicial branch of

government. See LSA-Const. Art. 5, § 25 (1974). Hence,

contrary to petitioners’ contention, the Ad-

ministrative Procedure Act is inapplicable.

37a

The Judiciary Commission procedures are set forth

in Rule 23 of the Louisiana Supreme Court Rules. Sec-

tion 9(a) provides:

“In proceedings involving his discipline, a

judge shall have the right and reasonable op-

portunity to defend against the charges by the

introduction of evidence, to be represented by

counsel, and to examine and cross-examine

witnesses. He shall also have the right to the

issuance of subpoenas for attendance of

witnesses to testify or for the production of

books, papers, documents, and other eviden-

tiary matter.”

Insofar as representation by counsel is concerned,

the above section contains no constitutional infirmity.

Equal Protection

The petitioners assert that Canon 5C(2) violates the

Equal Protection Clause of the Fourteenth Amend-

ment in that it makes two sets of classifications which

are unreasonable. First, the canon applies only to full-

time judges and not to part-time judges. Second, the

canon prohibits judges from serving as directors of

banks, lending institutions, homestead associations,

insurance companies, public utilities, and other

businesses affected with a public interest but does not

prohibit service on the boards of other types of cor-

porations.

The guiding principle of equal protection is that all

persons similarly situated shall be treated alike. Lov-

—

— eee r

3

ing v. Virginia, 388 U.S. 1. 18 L. Ed. 2d 1010. 87 S. Ot. 1817

(1967); 16A C. J. S., Constitutional Law. § 502, p. 296.

As the petitioners correctly note, the key to deter-

mining whether there has been a denial of equal

protection is whether the classifications made are un-

reasonable and arbitrary.

By virtue of constitutional and statutory authority.

a substantial number of part-time judges are present

ly serving in the courts of limited jurisdiction. See

LSA-Const. Art. 5, § 15 (1974); LSA-13:1951 et seq.

These judges are legally authorized to pursue another

occupation, and their compensation is fixed accor-

dingly. Because of the dual source of their livelihood,

their situation differs in a marked degree from that of

the full-time judge of the courts of general and

appellate jurisdiction. Under the circumstances, the

separate classification of the part-time judge is

neither unreasonable nor arbitrary. Reynolds v.

Chumbley, 175 Tenn. 492, 135 S.W.2d 939 (1940).

The business classification of the canon is based

upon the Code of Judicial Conduct of the American Bar

Association adopted in 1972. That code contains

alternative provisions: One, prohibiting a judge from

serving as a director of any business; the other,

prohibiting a judge from serving as a director of

specified businesses affected with a public interest.

After consideration, the Supreme Court adopted the

less restrictive of the two provisions. See E. W. Thode,

Reporter's Notes to Code of Judicial Conduct (1973) pp.

80-83.

The question then becomes whether “bank, lending

institution, homestead or savings and loan associa-

tion, insurance company, public utility, and other

businesses affected with a public interest” represents

an unreasonable classification. We think not.

An analysis of the businesses enumerated discloses

that they are of three types: (1) financial institutions,

(2) public utilities, and (3) other businesses affected

with a public interest.

Because of the nature of their operations, these three

types of businesses are more likely to have regular

litigation in the courts than other businesses.

Mortgage foreclosures and suits on promissory notes

by financial institutions are daily grist in the courts.

Significantly, the courts ultimately review the rates of

public utilities. Service on the boards oPfinancial in-

stitutions, which compete for public patronage, is

more likely to provide ground for a reasonable suspi-

cion that a judge is utilizing the power and prestige of

his office to influence others to patronize the business

or contribute to its success.

We conclude that the business classification has a

rational basis and is neither arbitrary nor un-

reasonable.

Freedom of Association

Petitioners’ contention under the First Amendment

is that the canon abridges their right to freely make

economic associations.

40a

The First Amendment, of course, is applicable to the

states by virtue of the Fourteenth Amendment. Palko

v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288

(1937). However, freedom of association is not an ab-

solute. Whenever the freedom of association is

asserted against the exercise of state powers, it must

be considered “in light of the special characteristics of

the ... environment” in the particular case. See

Tinker v. Des Moines Independent School District, 393

U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In such a

case, a determination of the constitutionality of the

regulatory measure requires a weighing of the com-

peting interests. The State must demonstrate that the

action taken is reasonably related to the protection of

a legitimate interest and that the restriction on

association is no greater than is required to further

that interest. Healy v. James, 408 U.S. 169, 92 S. Ct. 2338,

33 L.Ed.2d 266 (1972); 16 Am.Jur.2d, Constitutional

Law, § 355, p. 682; Annot., Right of Association, 33

L.Ed.2d 865 (1973).

The contervailing state interest in the present case

is the impartiality, independence, and public image of

the judiciary. See Canon 1, Louisiana Code of Judicial

Conduct; 308 So.2d XXXIV.

The state interest is correctly described in 46 Am.

Jur.2d, Judges, § 51, p. 128 as follows:

“The peculiar nature of his office imposes

upon a judge certain restrictions and

limitations with respect to the extent to which

he may engage in the ordinary activities and

associations of citizens. He should, of course,

refrain from activities and associations that —

41

would tend to impair his independence of

judgment or render him subject to improper

influence in the performance of his duties.”

In 1948, Judge John J. Parker, United States Court of

Appeals, Fourth Circuit, emphasized the importance

of the regulatory interest here when he wrote:

“The judge must not only be independent — ab-

solutely free of all influence and control so

that he can put into his judgments the honest,

unfettered and unbiased judgment of his mind

but he must be so freed of business, political

and financial connections and obligations that

the public will recognize that he is indepen-

dent. It is of supreme importance, not only that

justice be done, but that litigants before the

court and the public generally understand that

it is being done. 20 Tenn. L. Rev. 703, 705-706

(1947-1949).

The state interest here is a compelling one. The

restriction falls only upon those who freely accept the

privilege of judicial office. As we have already

observed, it is reasonably designed to further that in-

terest. .

In our opinion, the Canon does not unconstitutional-

ly infringe upon the freedom of association.

Other Issues

One member of the Judiciary Commission asserts

that the courts lack jurisdiction to decide the merits of

any of petitioners’ constitutional claims at this time.

Although his contention is substantial, we ultimately

conclude that it is without merit. In our opinion, the

courts do have jurisdiction in a declaratory judgment

action to determine the constitutionality of the basic

canon at this time. LSA-Const. (1974) Art. 1. § 22; LSA-

C.C.P. Art. 1871.

The petitioners advance other contentions dealing

with various aspects of the disciplinary investigation

begun by the Judiciary Commission. Particularly, all

parties request the Court to rule upon the question of

whether or not service as a director of a financial in-

stitution in violation of Canon 5C(2) is per se proscrib-

ed conduct under Article 5, § 25(C) of the Louisiana

Constitution (1974). These contentions are not proper-

ly before the Court. As a constitutionally created

disciplinary body, the Judiciary Commission is

vested with the initial responsibility of investigating

judicial misconduct and, when justified, making ap-

propriate recommendations to this Court for dis-

ciplinary action. This Court, of course, must pass

upon these recommendations. See LSA-La. Const.

(1974) Art. 5, § 25.

For the reasons assigned, Canon 5C(2) of the

Louisiana Code of Judicial Conduct is declared con-

stitutional, the demands of the petitioners are

otherwise rejected at petitioners’ costs, and the stay

order previously issued is recalled.

43a

APPENDIX D

JUDICIARY COMMISSION OF LOUISIANA

No. 0008 No. 0012

In Re: Judge Allen M. Babineaux In Re: Judge Edward N. Engolio

No. 0009 No. 0016

In Re: Judge B. I. Berry In Re: Judge John C. Morris, Jr.

No. 0010 No. 0017

In Re: Judge Lucien C. Bertrand, Jr. In Re: Judge Walter C. Peters

No. 0011

In Re: Judge Louis G. DeSonier

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

[Filed: Mar. 23, 1977]

Canon 5C(2) of the Code of Judicial Conduct

prohibits a judge from serving as an officer, director,

manager, or employee of any bank, lending institu-

tion, homestead or savings and loan association, in-

surance company, public utility, and other businesses

affected with a public interest. Each of the respondent

judges, by his own admission, has been and is present-

ly serving as a member of the board of directors of a

financial institution such as is described in the Canon.

Accordingly we find that each of the respondent

judges has been and remains in open violation of

Canon 5C(2) of the Code of Judicial Conduct and that

said violation per se constitutes persistent and public

conduct prejudicial to the administration of justice

that brings the judicial office into disrepute.

We further find that each of the respondents has been

and is well aware of the existence of Canon 5C(2). We

particularly note that, in a suit brought by the

respondents for a stay of these proceedings and for a

declaratory judgment, the Louisiana Supreme Court

44a

recently upheld the constitutionality of the Canon and

its applicability to respondent judges and lifted the

stay of these proceedings. Each of the respondents has

been given ample notice and ample opportunity to

comply with the Canon. Nevertheless, respondents

continue to violate the Canon. Accordingly, we find

each of the respondent judges guilty of willful miscon-

duct.

RECOMMENDATION

Accordingly we recommend that each of the respon-

dent judges be suspended without salary until such

time as he complies with Canon 5C(2) by resigning his

directorship or directorships on the financial in-

stitutions on which he has been and is currently serv-

ing.

Given under our hands, this 5th day of February,

1977.

/s/ JAMES H. DRURY

James H. Drury, Chairman

/s/ CLEVELAND C. BURTON

Cleveland C. Burton

/s/ CHARLES H. HECK

Charles H. Heck

/s/ JUDGE S. SANFORD LEVY

Judge S. Sanford Levy, Vice-Chairman

/s/ EDWARD W. STAGG

Edward W. Stagg

/s/ MONROE JACKSON RATHBONE, JR., M.D.

Monroe Jackson Rathbone, Jr., M.D.

/s/ JUDGE EARL E. VERON

Judge Earl E. Veron

45a

I respectfully dissent from the findings of fact, con-

clusions of law and recommendation of the majority of

the Commission.

See attached.

/s/ SIDNEY B. FLYNN

Sidney B. Flynn

Judge Paul B. Landry, Jr., recused himself from the

entire proceedings.

DISSENT

I agree with the majority in findings of fact except

that ample opportunity to comply has not been

granted. The respondent judges were elected to their

current term of office which commenced prior to the

effective date of adoption of the revised Canons of

Judicial Ethics. Application of the revised canons ata

mid-term period will work a hardship on the respon-

dent judges. While it is recognized that the judges

could have chosen not to seek reelection, to have done

so would have likewise worked a hardship in that

abandonment of their judicial careers and rebuilding a

private law practice takes time. An effective fair date

to apply the whip of reform should be the completion

of the current term of office.

Accordingly, I recommend that application of dis-

cipline be postponed until completion of the current

term of office of the respondent judges.

/s/ SIDNEY B. FLYNN

Sidney B. Flynn