STATE v. CLUES ALEXANDER (2020)

Writ granted. The order granting Judge Comeaux's recusal is hereby reversed. We find it noteworthy the motion to recuse was filed after Judge Comeaux had already accepted the defendant's guilty plea, albeit before sentencing. Further, we do not find the potential for bias for the average judge in this position is unconstitutionally high. Rather, we find instructive a comment to La. Code Crim. P. art. 651: “If the district judge has signed restraining orders in a civil suit involving the same allegations as the charges in the criminal prosecution, he is not subject to recusation for having performed a judicial act in the cause ‘in another court.’ ” Even if the dismissal of the protective order was legally incorrect, and we are not expressing such an opinion, it would still only be classified as an adverse ruling performed within a judge's authority. Adverse rulings, alone, do not show bias or prejudice requiring recusal.

I agree with the grant of the State's writ application and write separately to emphasize the dangerous precedent the lower courts' rulings would create if allowed to stand. The mere fact that Judge Comeaux presided over a protective order matter involving defendant and the victim is not a fact, alone, that creates a “probability of actual bias on the part of the judge or decisionmaker [ ] too high to be constitutionally tolerable.” Rippo v. Baker, ––– U.S. ––––, 137 S.Ct. 905, 197 L.Ed. 2d 167 (2017) (citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)); see also, C.Cr.P. art. 671, cmt. (“If the district judge has signed restraining orders in a civil suit involving the same allegations as the charges in the criminal prosecution, he is not subject to recusation for having performed a judicial act in the cause ‘in another court.’ ”). If allowed to stand, the lower courts' rulings could be viewed as precedent for a party to criticize past judicial orders in a concerted effort to force a recusal, thereby effectively engaging in the distasteful exercise of judge shopping.

PER CURIAM

Crichton, J., additionally concurs and assigns reasons.