PETER ADAMS ET AL v. ENTERGY NEW ORLEANS INC ET AL (2024)

Writ application granted. See per curiam.

SJC

JLW

JDH

JTG

WJC

JBM

PDG

Crichton, J., additionally concurs and assigns reasons.

Griffin, J., additionally concurs and assigns reasons.

Supreme Court of Louisiana June 18, 2024

06/18/24

SUPREME COURT OF LOUISIANA

No. 2024-CC-00678

PETER ADAMS, ET AL.

VS.

ENTERGY NEW ORLEANS, INC., ET AL.

On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans Civil

PER CURIAM

We are called upon to determine whether a trial judge who asks about the parties’ settlement negotiations during the course of a bench trial must be recused. For the reasons that follow, we reverse the court of appeal and find recusal is not mandated under the facts of this case.

FACTS AND PROCEDURAL HISTORY

This matter arises from a 2014 natural gas leak in a New Orleans neighborhood. Numerous nearby residents filed suit against several defendants, including Entergy New Orleans, L.L.C. (“ENO”).

A bench trial commenced on May 6, 2024 before Judge Nicole Sheppard. After court recessed on May 13, 2024, Judge Sheppard asked the counsel for the parties if settlement discussions had taken place. Apparently, plaintiffs’ counsel responded that a “low ball” offer had been received from the defense. Noting the “tense demeanor” of the attorneys, Judge Sheppard did not pursue the matter further that day.

The next day, ENO filed a motion to recuse Judge Sheppard, along with a motion for mistrial. Judge Sheppard heard arguments on the motion from the parties and then denied Entergy's motion to recuse pursuant to La. Code Civ. P. art. 154(C), finding the motion failed to state a valid basis for recusal. In reasons for judgment, she stated, in pertinent part:

In the instant matter, the Court does not find that ENO has set forth a mandatory ground for recusal under CCP article 151. The Court's decision-making in this case has been guided by the twin imperative duties of a judge: trying this case impartially, affording both Plaintiffs and Defendant the opportunity to put on their respective cases; and, promoting the public's confidence in the integrity and impartiality of the judiciary. Further, ENO has not set forth facts or produced evidence constituting grounds for recusal in this case. It is merely alleged that the Court was made aware of ENO's “bottom line” figure in regards to settlement during the brief discussion, however the Court was not aware that this figure represented ENO's bottom line until counsel disclosed it in open court during the recusal hearing. Settlement negotiations are not admissions of fault, and this Court does not believe the parties’ engagement in negotiation, whether successful or not, is prejudicial to either party. In short, the allegation that the Court is somehow biased or prejudiced by its attempt to resolve the matter is unsupported by both statutory and jurisprudential authority, but most importantly, the record of these proceedings.

ENO sought supervisory review of this ruling. The court of appeal granted relief, ordering Judge Sheppard either to self-recuse or apply for the appointment of an ad hoc judge pursuant to La. Code Civ. P. art. 154(B). Adams v. Entergy New Orleans, Inc., 2024-0282 (La. App. 4 Cir. 5/1/24), --- So. 3d ---. Thereafter, Judge Sheppard applied to this court, which appointed Judge Kirk Vaughn as judge ad hoc for purposes of hearing the motion.

After a hearing, Judge Vaughn denied the motion to recuse Judge Sheppard. In oral reasons for judgment, Judge Vaughn explained, “I don't feel that there is any type of substantial or objective basis to feel that she cannot be fair in this case and render a fair and impartial determination of the issues before the court.”

ENO sought supervisory review. The court of appeal granted writs and reversed, finding “the district court's inquiry and resulting knowledge of the Relator's last settlement offer to the Respondents reveals that there is a substantial and objective basis that would reasonably prevent her from presiding over this matter in a fair and impartial manner.”¹ The court of appeal remanded for reallotment to a new judge and a hearing on the motion for mistrial.

Plaintiff now seeks review in this court.

DISCUSSION

We begin our analysis from the well-settled proposition that a “judge is presumed to be impartial.” Frye v. Ballard, 2023-00317 (La. 3/14/23), 358 So. 3d 36 (quoting Slaughter v. Bd. Of Sup'rs of S. Univ. and Agric. & Mech. Coll., 2010-1114 (La. App. 1 Cir. 8/2/11), 76 So. 3d 465, 471, writ denied, 2011-2112 (La. 1/13/12), 77 So. 3d 970).

In 2021, the legislature amended La. Code Civ. P. art. 151(B) to provide a judge “shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.” In interpreting this new amendment, the jurisprudence has held “the addition of Paragraph B recognizes that there may be instances in which actual bias or prejudice cannot be proven, but which nonetheless require the recusal of the judge.” Anderson v. Dean, 22-233 (La. App. 5 Cir. 7/25/22), 346 So. 3d 356, 368.

Here, the court of appeal concluded, “the district court's inquiry and resulting knowledge of the Relator's last settlement offer to the Respondents reveals that there is a substantial and objective basis that would reasonably prevent her from presiding over this matter in a fair and impartial manner.” Adams v. Entergy New Orleans, Inc., 2024-0309, p. 2 (La. App. 4 Cir. 5/24/24) (unpub'd). Plaintiffs contest this conclusion, arguing that the brief, off the record conversation does not amount to a substantial and objective basis to warrant recusal. On the other hand, ENO asserts Judge Sheppard's knowledge of the parties’ settlement negotiations compromised her ability to try the suit in a fair and impartial manner. In support, ENO cites La. Code Evid. art. 408 for the proposition that settlement offers or discussions are prohibited from disclosure because they are irrelevant and unduly prejudicial.

We agree any evidence of the parties’ settlement negotiations is inadmissible. Nonetheless, it has long been recognized that a “judge is trained in the law and is able to disregard irrelevant and possibly prejudicial matter.” State v. Crothers, 278 So. 2d 12 (La. 1973). Indeed, in her initial reasons denying the recusal motion, Judge Sheppard confirmed that she would not place any weight on the information regarding the settlement negotiations, explaining “[s]ettlement negotiations are not admissions of fault, and this Court does not believe the parties’ engagement in negotiation, whether successful or not, is prejudicial to either party.” Similarly, after hearing the evidence at the recusal hearing, Judge Vaughn made a factual finding there was no substantial or objective basis to find Judge Sheppard could not render a fair and impartial determination of the issues before the court.

Considering the specific and narrow facts before us, we find no error in Judge Vaughn's finding that recusal of Judge Sheppard was not warranted.² Accordingly, we find the court of appeal erred in reversing that judgment.

DECREE

For the reasons assigned, the writ is granted and made peremptory. The judgment of the court of appeal is reversed, and the judgment of the ad hoc judge denying the motion to recuse Judge Nicole Sheppard is reinstated. The case is remanded to the district court for further proceedings, including consideration of any pending motions.

I agree with this Court's unanimous per curiam opinion to reverse the ruling of the court of appeal recusing the trial court judge in this case. I write separately to note my strong concern about the nature of the proceedings in connection with the motion to recuse. The hearing on the motion contained informal and irrelevant banter between the ad hoc judge and counsel, which, along with frivolous objections, rendered the transcript convoluted and painfully challenging to read.

Contained in the Louisiana Lawyer's Oath, sworn to by all licensed attorneys in this state, is a promise to “maintain the respect due to courts of justice and judicial officers” and a pledge of “fairness, integrity, and civility” to opposing parties and counsel. See La. Lawyer's Oath, available at https://www.lsba.org/Professionalism. The Louisiana State Bar Association Code of Professionalism additionally directs lawyers “to protect and improve the image of the legal profession in the eyes of the public.” La. State Bar Ass'n Code of Pro., available at https://www.lsba.org/Professionalism. The Code of Professionalism contained in this Court's administrative rules further requires lawyers to “not engage in any conduct that brings disorder or disruption to the courtroom.” La. Sup. Ct. R. Part G, § 11 (“Lawyers’ Duties to the Courts”) (emphasis added). In addition, judges are called on to “maintain control of the proceedings, recognizing that judges have both the obligation and authority to insure that all litigation proceedings are conducted in a civil manner.” La. Sup. Ct. R. Part G, § 11 (“Judges’ Duties to the Courts”). Louisiana District Court Rules also explain, “[a]ttorneys shall address all remarks, objections, and comments to the judge, never to opposing counsel. Impromptu argument or discussion between counsel will not be permitted.” Title I, Rule 6.2 (f), La. Dist. Ct. Rules, available at https://www.lasc.org/rules/dist.ct/Title_I.pdf.

These concepts are likewise codified at La. C.C.P. art. 371, which states, in pertinent part,

An attorney at law is an officer of the court. He shall conduct himself at all times with dignity and decorum, and in a manner consistent with the dignity and authority of the court and the role which he himself should play in the administration of justice. He shall treat the court, its officers, jurors, witnesses, opposing party, and opposing counsel with due respect; shall not interrupt opposing counsel, or otherwise interfere with or impede the orderly dispatch of judicial business by the court[.]

(emphasis added).

There were many instances during the recusal hearing when the lawyers and, at times, the ad hoc judge failed to comply with these rules. In particular, the lawyers repeatedly spoke over each other, requiring the court reporter to intervene four times. The reporter began by stating, “[a]nd, Counsel, just a reminder, one at a time.” Later, when asked to read a question back to the witness, the reporter responded, “I'll try. Y'all were speaking over each other.” Later she again reminded the lawyers for both parties, “Ladies, one at a time.” Eventually, the hearing became so unruly, the court reporter had to pause the proceeding herself to ensure she could do her job.¹ She said, “—hold on. Stop.” When the attorney continued to speak, the reporter said, “Hold on.” Again, counsel interrupted, and the reporter said, “Ms. Jacobs, stop. Take a breath. I need y'all to calm down. I'm sure this record is going to go somewhere, and I need a clear record. Okay. Please.” The judge himself was interrupted as he admonished the lawyers to “wait until the other one is finished speaking [interruption] before you speak.”

The proceedings were so disorderly, the court reporter took the extraordinary step of including a disclaimer at the end of the transcript explaining, “[t]hat due to the interaction in the spontaneous discourse of this proceeding, dashes (--) have been used to indicate pauses, changes in thought, and/or talkovers[.]” In my many years reading transcripts, I have rarely seen a “Reporter's Page” including this sort of disclaimer from a court reporter. In short, our ruling today reinstating the ad hoc judge's decision on the recusal motion should not be interpreted as an endorsement of such inappropriate conduct during the hearing.

A trial judge's mere knowledge of the amount of a settlement offer does not establish a substantial and objective basis under La. C.C.P. art. 151(B) to warrant recusal.¹ The practical result would otherwise hamstring a trial court's ability to manage its docket. See La. C.C.P. art. 1631(A) (trial court “has the power to require that the proceedings shall be conducted ․ in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done”); Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741, 757 (compromises and settlements are favored in the law as a matter of public policy). Counsel for a litigant could create automatic grounds for recusal by their own utterance of a proposed settlement offer. Further, taken to its logical conclusion, the court of appeal's reasoning would require the recusal of any appellate judge who reads the record and becomes aware of the amount of a settlement offer. A greater and more individualized factual basis is required.

FOOTNOTES

1.   One judge on the panel concurred to emphasize that the ad hoc judge engaged in “inappropriate discussions” about the settlement offer amount during the recusal hearing.

2.   We acknowledge that decisions from other states have suggested a judge should be automatically recused from presiding over a suit when the judge has extensive involvement in pre-trial settlement conferences. See, e.g., Timm v. Timm, 195 Conn. 202, 203–04, 487 A.2d 191, 193–94 (1985). However, those specific facts are not presented in the matter currently before us, and we decline to express any opinion on whether Louisiana would follow a similar rule.

1.   La. C.C.P. art. 372(A) provides, “The court reporter of a trial court, when directed by the court, shall report verbatim ․ the testimony of all witnesses, the other evidence introduced or offered, the objections thereto, and the rulings of the court thereon, on the trial of any appealable civil case or matter.”

1.   The alleged impartiality would only apply to quantum not liability. The more expedient remedy is for a litigant to seek appellate review of damages awarded, if any.