FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE # 92
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of December, 2004, are as follows:
BY TRAYLOR, J.:
2004-O -2123
IN RE: JUDGE TIMOTHY C. ELLENDER
(Judiciary Commission of Louisiana)
Upon review of the record, briefs, and oral argument, it is ordered
that Judge Timothy Ellender, be suspended from his office of Judge,
Thirty-Second Judicial District Court for the Parish of Terrebonne
for a period of one year, without pay, with six months deferred.
During his suspension, it is ordered that Judge Ellender complete the
condition set forth in this opinion. Failure to adhere to the
condition, may be grounds to revoke the deferred portion of the
suspension. All costs and expenses, amounting to $2,136.70 (Two
thousand, one hundred and thirty six and 70/100 dollars), are
assessed against Judge Ellender in accordance with Supreme Court Rule
XXIII, §22.
Judge
place
Judge
place
Edwin A. Lombard assigned as Justice ad hoc, sitting in the
of Associate Justice Bernette J. Johnson, recused. Retired
Lemmie O. Hightower, assigned as Justice ad hoc, sitting in the
of Associate Justice John L. Weimer, recused.
VICTORY, J., dissents and assigns reasons.
HIGHTOWER, J., ad hoc, dissents and assigns reasons.
LOMBARD, J., ad hoc, additionally concurs and assigns reasons.
12/13/04
SUPREME COURT OF LOUISIANA
No. 2004-O-2123
IN RE: JUDGE TIMOTHY C. ELLENDER
On Recommendation for Discipline
From the Judiciary Commission of Louisiana
TRAYLOR, J.*
This matter comes before this Court on the recommendation of the Judiciary
Commission of Louisiana (“Commission”) that Judge Timothy C. Ellender of the
Thirty-Second Judicial District Court, Parish of Terrebonne, State of Louisiana, be
suspended from judicial office without pay for one year plus one day, and ordered to
reimburse the Commission costs incurred in the investigation and prosecution of this
case. The Commission conducted an investigatory hearing, issued findings of fact
and conclusions of law, and determined that Judge Ellender violated La. Const. Art.
V, §25(C). Judge Ellender and the Commission stipulated that he violated Canons
1 and 2A of the Code of Judicial Conduct.
FACTS AND PROCEDURAL HISTORY
Judge Ellender assumed the office of judge of the Thirty-Second Judicial
District Court for the Parish of Terrebonne on January 1, 1983. The facts that form
the basis of the complaint are not disputed.
*
Judge Edwin A. Lombard assigned as Justice ad hoc, sitting in the place of Associate
Justice Bernette J. Johnson, recused. Retired Judge Lemmie O. Hightower, assigned as Justice
ad hoc, sitting in the place of Associate Justice John L. Weimer, recused.
1
On October 31, 2003, Judge Ellender and his wife attended a Halloween party
held at the 1921 Seafood Restaurant in Houma, which is owned by Mrs. Ellender’s
relative, Mr. Jody Martin. The party guests were the majority of persons in the
restaurant that night, but there were five or six other persons who were also seated for
dinner who were not party guests. The restaurant remained open to the public to
purchase seafood for take out. Staff of the restaurant, including an African-American
employee, were also present. Judge Ellender was dressed as a prisoner, wearing an
orange prison jumpsuit and handcuffs he borrowed from the Sheriff of Terrebonne
Parish, as well as a black afro wig. Mrs. Ellender was dressed as a police officer.
Based on briefs filed by Judge Ellender, in choosing these costumes, it was his intent
to be humorous by implying that Mrs. Ellender, who was newly married to him and
who was reportedly young and attractive, had her husband under her control.
When Judge and Mrs. Ellender arrived at the party, their costumes did not
generate the laughs they had expected. Judge Ellender remarked upon this, and Mr.
Martin, offered the judge some black makeup to enhance his costume. Both Judge
Ellender and Mrs. Ellender applied the black makeup to their faces. According to
Judge Ellender’s testimony before the Commission, after about an hour the wig was
bothering him and he removed it and wiped the makeup off his face. He testified that
he also took off the handcuffs and went to another restaurant.
On November 9, 2003, The Courier, a local newspaper in Houma, printed an
article entitled “Local judge’s masquerade sparks racial concerns.” Local broadcast
media picked up the news report about the judge’s costume on November 10, 2003,
followed by CNN on November 11 and two New Orleans television stations on
November 19. The local office of the NAACP also received calls complaining about
Judge Ellender’s Halloween masquerading. Between November 11 and 17, 2003,
2
the Commission received six complaints about Judge Ellender’s blackface masking
on Halloween, including complaints filed by the NAACP and Judge Ellender’s
colleagues on the 32nd Judicial District Court bench.
After an investigation, the Commission filed formal charges against Judge
Ellender. The Commission alleged that Judge Ellender lent the prestige of his judicial
office to advance his own private interest in securing public property, namely the
prison jumpsuit and handcuffs that he obtained from the Sheriff of Terrebonne Parish;
that Judge Ellender’s actions on Halloween were widely reported in the local and
national news media, causing members of the public to view in a negative manner the
judicial system in Houma, Terrebonne Parish, and throughout the State of Louisiana;
and that by wearing a “blackface prisoner costume” in public on Halloween, Judge
Ellender portrayed African-Americans in a racially stereotypical manner that
perpetuated the notion of African-Americans as both inferior and as criminals, which
conduct was offensive, derogatory, degrading, insulting, and demeaning towards
African-Americans, and called into question Judge Ellender’s integrity and his ability
to be fair and impartial towards African-Americans who appear before his court as
defendants in criminal proceedings, all in violation of Canons 1, 2A, 2B, 3A(4), and
3C of the Code of Judicial Conduct. The Commission further alleged that Judge
Ellender engaged in public conduct prejudicial to the administration of justice that
brought the judicial office into disrepute, in violation of La. Const. art. V, § 25(C).
Prior to the hearing, on May 20, 2004, Judge Ellender and the Office of Special
Counsel (“OSC”) filed a “Statement of Stipulated Uncontested Material Facts and
Stipulated Conclusions of Law.” Judge Ellender admitted the essential underlying
factual allegations of the Formal Charges. Specifically, Judge Ellender admitted that
he wore, in public, a Halloween costume consisting of “blackface” makeup, an
3
official orange prison jumpsuit, handcuffs, and an “afro” wig. Based on these
stipulated facts, Judge Ellender and the OSC agreed that he violated Canons 1 and
2A of the Code of Judicial Conduct. However, Judge Ellender did not agree that by
wearing such a costume he portrayed African-Americans in a racially stereotypical
manner that perpetuated the notion of African-Americans as both inferior and as
criminals, nor did he agree that he engaged in conduct that was offensive, derogatory,
degrading, insulting, and demeaning towards African-Americans. Judge Ellender
further refuted the allegation that he called into question his integrity or his ability to
be fair and impartial towards African-Americans who appear before his court as
defendants in criminal proceedings. Finally, Judge Ellender denied that his conduct
constituted a violation of Canons 2B, 3A(4), or 3C of the Code of Judicial Conduct
or La. Const. art. V, § 25(C).
On June 18, 2004, the Commission conducted a hearing on the Formal
Charges. Judge Ellender testified on his own behalf and on cross-examination by the
OSC, admitted that dressing up in a prison outfit with black makeup on his face was
“offensive,” “insensitive and wrong.” He also agreed that he understood how “people
could consider that very inflammatory.” Judge Ellender pleaded “stupidity, ignorance
and lack of judgment” in his choice of a Halloween costume, but denied that by
dressing in this manner he perpetuated the notion of African-Americans as criminals.
Finally, Judge Ellender apologized to “those of you who I ever offended” for his
“lapse of judgment.”
In addition to the stipulated facts and conclusions of law,1 on August 17, 2004,
1
Prior to the hearing, the parties stipulated to the introduction of exhibits concerning the
subject matter at hand, including transcripts from news programs aired on CNN, videotapes from
local television broadcasts, articles and editorials from local and national newspapers, and letters
to the editors of several local newspapers. The parties also stipulated to the introduction of a
resolution of the Louisiana State House of Representatives relative to Judge Ellender and two email letters in support of Judge Ellender sent to this court’s public information officer.
4
the Commission issued its findings of fact and legal conclusions. The Commission
concluded that by wearing his “black face prisoner costume” in public on Halloween,
Judge Ellender portrayed African-Americans in a racially stereotypical manner that
perpetuated the notion of African-American men as both inferior and as criminals.
The Commission also found that Judge Ellender’s conduct called into question his
ability to be fair and impartial towards African-Americans who appear before his
court as defendants in criminal proceedings, as well as towards any African-American
litigant or attorney in any proceeding before him, thereby creating the appearance of
impropriety. The Commission determined that this was public conduct by Judge
Ellender which was prejudicial to the administration of justice, in violation of La.
Const. art. V, §25(C). Finally, the Commission concluded that Judge Ellender’s
“tempest in a teapot” comment to a newspaper reporter belittled the seriousness of the
Halloween costume incident, thereby aggravating the unethical appearance of
impropriety, in violation of Canon 1 of the Code of Judicial Conduct. However, the
Commission found that Judge Ellender did not violate Canon 2B of the Code of
Judicial Conduct, which prohibits a judge from lending the prestige of judicial office
to advance his own private interest, because the unrebutted hearing testimony was to
the effect that the sheriff loaned prison jumpsuits and handcuffs to anyone who asked
for them. Furthermore, the Commission found no violation by Judge Ellender of
Canon 3A(4), which requires a judge to perform judicial duties without bias or
prejudice. The Commission recommended Judge Ellender be suspended from judicial
office without pay for one year plus one day, and ordered to reimburse the
Commission costs incurred in the investigation and prosecution of this case.
JURISDICTION OF THE SUPREME COURT
This Court has original jurisdiction in judicial disciplinary proceedings. La.
5
Const. art. V, § 25 (C). Therefore, this Court has the power to make original
determinations of fact based upon the evidence in the record and is not bound by, nor
required to give any weight to, the findings and recommendations of the Judiciary
Commission. In re Quirk, 97-1143 p.4 (La.12/12/97), 705 So.2d 172, 176.
Pursuant to our supervisory authority over all lower courts, this Court adopted
the Code of Judicial Conduct (“Code”), effective January 1, 1976, and amended July
8, 1996. The Code is binding on all judges, and violations of its Canons can, without
more, serve as the basis for the disciplinary action provided for by La. Const. art. V,
§ 25(C). E.g., In re Jefferson, 99-1313, p. 3 (La.1/19/00), 753 So.2d 181, 184-85;
In re Bowers, 98-1735, p. 7 (La.12/1/98), 721 So.2d 875, 879; In re Quirk, 97-1143,
p. 4, 705 So.2d at 176. The Code consists of a series of canons which not only
provide guidance and instruction but demand ethical conduct and the avoidance of
unethical conduct or practices. The Code is "binding on all judges, and judges are
"governed exclusively by [its] provisions." In re Decuir, 95-0056, p. 8 (La.5/22/95);
654 So.2d 687, 692 and La. R.S. 42:1167. The legislative statement in La. R.S.
42:1167, codifies our jurisprudence which provides that judges are governed
exclusively by the Code, and the Code is not contrary to the Constitution's exclusive
grant of authority to this Court in the realm of judicial misconduct. In re: Lemoine,
96-2116 (La. 1/14/97), 686 So.2d 837. Because the Code contains some general
commands, for example
Canon 1 ("A Judge Shall Uphold the Integrity and
Independence of the Judiciary") and Canon 2 ("A Judge Shall Avoid Impropriety and
the Appearance of Impropriety in All Activities"), it is apparent that the Code covers
all misconduct as well, since misconduct offends, at the least, Canons 1 and 2. It
is therefore safe to say, as the legislature did in 42:1167, that judges are governed
exclusively by the Code's provisions, notwithstanding the self-evident fact that the
6
Court has exclusive authority to punish misconduct, unlimited by the Code.
While this Court has the authority to punish misconduct for violation of the
Canons, the charge or charges against a judge must nonetheless be proved by clear
and convincing evidence before this Court can impose discipline. In re Bowers,
98-1735 at p. 7, 721 So.2d at 880; In re Johnson, 96-1866, p. 7 (La.11/25/96), 683
So.2d 1196, 1199; In re Huckaby, 95-0041, p. 6 (La.5/22/95), 656 So.2d 292, 296.
This standard requires that the level of proof supporting the charge or charges against
a judge must be more than a mere preponderance of the evidence, but less than
beyond a reasonable doubt. In re Bowers, 98-1735 at p. 7, 721 So.2d at 880; In re
Quirk, 97-1143 at p. 4, 705 So.2d at 176; In re Huckaby, 95-0041 at p. 6, 656 So.2d
at 296. Initially, we note that Judge Ellender and the OSC stipulated to the
underlying facts of the charge. The parties stipulated that Judge Ellender wore an
afro wig, black face makeup and a prison jumpsuit while at a public party and that his
actions violated Canons 1 and 2A of the Code of Judicial Conduct.
In In re Johnson, 96-1866 at p. 4(La.11/25/96), 683 So.2d at 1200, we applied
the clear and convincing standard of proof to a case where the judge and OSC entered
into a stipulation of facts which was later adopted by the Judiciary Commission in its
findings of fact and conclusions of law. There we stated:
Judge Johnson has admitted to all the facts necessary to determine
whether he violated the Code of Judicial Conduct in the Statement of
Uncontested Material Facts jointly submitted by all parties and accepted
by the Commission ... Because Judge Johnson agreed to stipulations
encapsulating the essence of ethical violations, ... our inquiry as to
Johnson's violations of these Canons is at an end. See Decuir, 95-0056
at p. 8, 654 So.2d at 692 (finding that because the parties stipulated to
the relevant facts and the judge admitted that the facts establish
violations of the Code of Judicial Conduct, the Court is "left only with
the task of deciding the appropriate measure of discipline in this case.")
Applying this analysis to the present case, we find that since Judge Ellender
7
stipulated to all the facts needed to determine his violation of the Code of Judicial
Conduct, Canons 1 and 2A, we pretermit addressing the remaining violations of
Canons 2B and 3(A)(4), and 3(C), as the Commission found no violation of these
Canons. We therefore find that the underlying facts forming the basis of the Formal
Charges relative to Canons 1 and 2A, have been proven by clear and convincing
evidence.
DISCUSSION
Our judicial system stands as the hallmark of a system created to ensure that
fairness and justice is dispensed to every citizen, without fear of bias or prejudice.
In the instant case, Judge Ellender stipulated that he wore an official orange prison
jumpsuit and a black “afro” wig to a public party. He admits his conduct violated
Canons 1 and 2A, which require a judge to uphold the integrity and independence of
the judiciary and require that a judge shall respect and comply with the law. The
actions of Judge Ellender resulted in several complaints being filed by a host of
persons ranging from private citizens to Judge Ellender’s fellow brethren of the 32nd
Judicial District Court. Judge Ellender’s actions were likewise widely reported in the
news both locally and nationally. We find that Judge Ellender’s conduct brought the
judiciary of this state into disrepute, and for such conduct we are compelled to
impose discipline.
Justice Francois-Xavier Martin, a great Chief Justice of Louisiana, quoted by
Justice Poche in State ex rel. Attorney General v. Lazarus, 39 La.Ann. 142, 1 So.
361, 376 (1887), eloquently stated, "All those who minister in the temple of justice,
from the highest to the lowest, should be above reproach and suspicion. None should
serve at its altar whose conduct is at variance with his obligations." It is widely
understood that judges symbolize the law, and, accordingly, their actions reflect
8
favorably or unfavorably on the judicial system. In re Wimbish, 98-2882 at p. 6 (La.
4/13/99), 733 So.2d 1183. As a public official, a judge’s behavior both on and off the
bench must comply with the highest of standards delineated in the Canons. When a
judge’s actions raise the concern Judge Ellender’s behavior raises, we are required
to thoroughly examine the conduct and the implications of such conduct, to ensure
that the integrity of the state’s judicial system is maintained.
Judges hold a unique position of administering justice. In re Wimbish, 733
So.2d 1183. For this reason, it is important that judges comply with the laws and
rules governing their conduct in a manner which promotes public confidence. Id.
Judges are held to a higher standard by virtue of their position and the authority they
have over citizens and must avoid any action which would cause the citizens to
question their integrity or the integrity of the bench. In his brief, and in his oral
argument, Judge Ellender consistently states that he meant no ill will or harm by his
costume. He submits that his costume was conceived in a joking manner to highlight
his marriage to his “new and younger wife.” Judge Ellender maintains that he sought
to convey the perception that he was a prisoner to his new wife, not that he was an
African-American convict. He vehemently denies that by wearing the costume he
meant to portray African-Americans in a “racially stereotypical manner that
perpetuated a notion that African-Americans are inferior and criminals.” Judge
Ellender admits that his behavior may have been perceived as “very inflammatory,”
for which he repeatedly apologizes. Accepting his statements as true, this Court is
nonetheless greatly troubled by the negative light Judge Ellender’s actions have cast
on the state’s judiciary. In determining an appropriate sanction, we are cognizant of
the principle that the primary purpose of the Code is to protect the public rather than
simply to discipline judges. In re Harris, 98-0570 (La.7/8/98), 713 So.2d 1138; In
9
re Marullo, 96-2222 (La.4/8/97), 692 So.2d 1019. As ministers of justice charged
with the duty to preserve the integrity of the bench for the benefit of the public, this
State's judges should conduct themselves in a manner above reproach and suspicion.
State ex rel. Attorney General v. Lazarus, 1 So. at 376.
DISCUSSION OF JUDICIAL CANONS AND DISCIPLINE
As in all judicial discipline matters, the Judicial Canons are paramount and
provide the benchmark against which judicial conduct is judged. In re Harris, 980570 at p.3, 713 So. 2d at 1141. Judge Ellender and the OSC stipulated that Judge
Ellender violated Canons 1 and 2A. Canon 1, entitled “A Judge Shall Uphold the
Integrity and Independence of the Judiciary,” provides:
An independent and honorable judiciary is indispensable to justice in
our society. A judge should participate in establishing, maintaining, and
enforcing, and should personally observe, high standards of conduct so
that the integrity and independence of the judiciary may be preserved.
Canon 2(A), entitled “A Judge Shall Avoid Impropriety and the Appearance of
Impropriety in All Activities,” provides:
A judge should respect and comply with the law and should act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
As Judge Ellender concedes violation of the Code, the sole remaining issue for this
Court is the appropriate discipline for his violations of Canons 1 and 2A. Hence, we
are compelled to impose a sanction on Judge Ellender which will facilitate the public
in regaining its confidence in the judiciary.
In In re Chaisson, 549 So.2d 259, 266 (La.1989), citing In Matter of Deming,
108 Wash.2d 82, 736 P.2d 639, 659 (1987), we adopted the following non-exclusive
list of factors to consider in imposing discipline on a judge:
(a) whether the misconduct is an isolated instance or evidenced a pattern
of conduct; (b) the nature, extent and frequency of occurrence of the
10
acts of misconduct; (c) whether the misconduct occurred in or out of the
courtroom; (d) whether the misconduct occurred in the judge's official
capacity or in his private life; (e) whether the judge has acknowledged
or recognized that the acts occurred; (f) whether the judge has
evidenced an effort to change or modify his conduct; (g) the length of
service on the bench; (h) whether there have been prior complaints
about this judge; (i) the effect the misconduct has upon the integrity of
and respect for the judiciary; and (j) the extent to which the judge
exploited his position to satisfy his personal desires.
Judge Ellender has remained continuously on the bench since 1983, and has never
been disciplined, either privately or publicly, for judicial ethical misconduct. The
conduct forming the basis of the complaints occurred outside of the courtroom in
Judge Ellender’s private life. However, we recognize that his actions have caused the
public to question his integrity and ability to be fair to African-Americans and has
diminished the integrity and respect citizens hold for Louisiana’s judiciary.
In mitigation, we find no evidence presented that Judge Ellender engaged in
disparate treatment of African-Americans and consider the totality of evidence
presented to the Commission. A review of Judge Ellender’s docket, conducted by the
District Attorney’s Office pursuant to a public records request, revealed no disparity
in his sentencing of criminals based on race. Four African-Americans testified on
Judge Ellender’s behalf. These witnesses testified that Judge Ellender is a good judge
and they consider him fair and impartial in carrying out his duties as a judge. One
witness even characterized his behavior on Halloween as “stupid,” a characterization
Judge Ellender himself concedes.
We agree with the mitigating evidence presented that Judge Ellender did not
intend to offer an affront to the African-American community. Nonetheless, his
behavior exhibits his failure to appreciate the effects of his actions on the community
as a whole. So finding, we conclude that his discipline must also include a
mechanism to enhance his understanding of the incident. We therefore order Judge
11
Ellender to enroll in a course at one of the local universities which will allow him to
gain insight into the attitude of other racial groups, particularly racial groups where
interrelations are marked by antagonism, discrimination and conflict. This Court has
reviewed the curriculum of several sociology departments at local universities,
including but not limited to Nicholls State and Southeastern Louisiana University,
and have found several courses addressing these issues. We hereby order Judge
Ellender, with the facilitation by the OSC, to enroll and complete at least one of these
courses.
Considering the mitigating circumstances, specifically that the act was isolated
and that there was no ill intent on the part of Judge Ellender, in addition to the
recommendation of course work above, we nonetheless find suspension from office
is also appropriate. We conclude that Judge Ellender should be suspended for one
year, without pay, and that six months of that suspension be deferred.2 The discipline
is subject to the condition outlined above that Judge Ellender attend a course which
will assist him in achieving a greater understanding of racial sensitivity.
CONCLUSION
The negative shroud cast upon the state’s judiciary by Judge Ellender’s actions
will only be lifted by time. This is a case of first impression in Louisiana and this
court is mindful of the effects Judge Ellender’s behavior has had on the people of this
state, including Judge Ellender and his family. The witnesses who testified before the
2
In its recommendation to this Court, the Commission recommended Judge Ellender be
suspended from office for one year and one day, without pay. During oral argument, Justice
Kimball questioned counsel for OSC about the effect the “one day” had on the recommended
discipline in this judicial discipline case. OSC responded that he was not aware of the reasoning
surrounding the recommendation of an additional one day. He acknowledged that the rules
applying to lawyer suspension were not applicable to this matter and that a suspension of one
year and one day has additional consequences only in lawyer disciplinary cases. We note that the
consequences of a suspension of one year and one day in a lawyer discipline case requires the
suspended lawyer to petition this Court for reinstatement of his/her license. This Court must
specifically approve the lawyers’ reinstatement. See Supreme Court Rule 19, §24. There is no
such requirement for judicial discipline.
12
Commission stated that many in the Houma community have accepted Judge
Ellender’s apology and are moving forward. In imposing discipline, we seek to
further that objective for Louisiana. Sanctions imposed in judicial disciplinary
proceedings against judges from this court range from removal to a complete rejection
of discipline. Hence, the discipline to be imposed depends upon the facts of each
case and the seriousness of the offenses involved, considered in light of any
aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington,
459 So.2d 520 (La.1984). Thus, in imposing discipline, we must remain mindful of
the principle that this Court must protect the public rather than simply discipline
judges.
Considering the Chaisson factors, and taking into account the testimony, we
conclude that the discipline outlined above is the appropriate sanction for Judge
Ellender’s actions.
DECREE
Upon review of the record, briefs, and oral argument, it is ordered that Judge
Timothy Ellender, be suspended from his office of Judge, Thirty-Second Judicial
District Court for the Parish of Terrebonne for a period of one year, without pay, with
six months deferred. During his suspension, it is ordered that Judge Ellender
complete the condition set forth in this opinion. Failure to adhere to the condition,
may be grounds to revoke the deferred portion of the suspension. All costs and
expenses, amounting to $2,136.70 (Two thousand, one hundred and thirty six and
70/100 dollars), are assessed against Judge Ellender in accordance with Supreme
Court Rule XXIII, § 22.
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12/13/04
SUPREME COURT OF LOUISIANA
NO. 04-O-2123
IN RE: JUDGE TIMOTHY C. ELLENDER
On Recommendation for Discipline
From the Judiciary Commission of Louisiana
VICTORY, J., dissenting.
I dissent from the majority opinion. As the majority notes, the primary purpose
in imposing a sanction is to protect the public rather than simply to discipline judges.
In re Harris, 98-0570 (La. 07/08/98), 713 So.2d 1138; In re Marullo, 96-2222 (La.
04/08/97), 692 So.2d 1019.
Traditionally, in lawyer-discipline cases, the Court looks to the guidelines from
theAmerican Bar Association for sanctions and deviates from those baseline sanctions
based on aggravating or mitigating factors. No such guidelines exist to give baseline
sanctions for judicial misconduct; however, In re Chaisson, 549 So.2d 259, 266 (La.
1989) provides a somewhat similar process for determining the proper disciplinary
sanction for judicial misconduct. Those factors are as follows:
(a) whether the misconduct is an isolated instance or evidenced a pattern
of conduct; (b) the nature, extent and frequency of occurrence of the acts
of misconduct; (c) whether the misconduct occurred in or out of the
courtroom; (d) whether the misconduct occurred in the judge’s official
capacity or in his private life; (e) whether the judge has acknowledged
or recognized that the acts occurred; (f) whether the judge has evidenced
an effort to change or modify his conduct; (g) the length of service on
the bench; (h) whether there have been prior complaints about this
judge; (i) the effect the misconduct has upon the integrity and respect for
the judiciary; and (j) the extent to which the judge exploited his position
to satisfy his personal desires.
1
Obviously, these factors should decrease or exacerbate the sanction imposed on the
offending judge.
In this case, nearly all of these factors favor mitigation of the sanction to be
imposed. First, it is uncontested that this act was an isolated incident which occurred
off the bench. In fact, Judge Ellender attended the party, not in any official capacity,
but as a friend and relative of the host.
In regard to the judge’s record of service, Judge Ellender served on the bench
for 22 years prior to the incident at bar, and his record is unblemished. Furthermore,
a review of Judge Ellender’s record on the bench turned up absolutely no evidence
of racial bias in his decisions; in fact, the review showed that, if anything, he was
more lenient toward African-American defendants. Nothing suggests that Judge
Ellender abused his office in order to further personal desires.
Finally, Judge Ellender apologized for his actions both publicly and in private
meetings with local leaders of the black community. The jurisprudence is clear that
a recognition of misconduct and a willingness to aid in the investigation of such
misconduct should act as a mitigating factor. See In re Ferrara, 458 Mich. 350, 582
N.W.2d 817 (1998). Here, Judge Ellender aided the Judiciary Commission and
acknowledged his actions from the outset.
Bearing in mind all these mitigating factors, it remains to determine a baseline
sanction from which to deviate. Since no jurisprudence involving similar misconduct
exists in Louisiana, one must examine cases in other jurisdictions in order to distill
a proper sanction. In re Stevens, 31 Cal.3d 403, 645 P.2d 99, 183 Cal. Rptr. 48
(1982), involved a judge who made patently racist and extremely offensive remarks
to counsel and court personnel during in-camera conferences. Furthermore, the judge
referred to his own court clerk in offensive, racist terms, and used a panoply of racial
2
epithets to refer to people with Hispanic surnames.1 While the California Supreme
Court found that the judge’s actions were “prejudicial to the administration of justice”
and “[brought] the judicial office into disrepute,” the Court found that the judge had
always performed his judicial duties fairly and without actual bias. In spite of this
egregious and highly offensive conduct, which far exceeded Judge Ellender’s
behavior, the Court imposed only a public censure, rather than a suspension or a
removal from office. In re Lowery, 999 S.W.2d 639, 661 (Review Tribunal,
Appointed by the Texas Supreme Court Feb. 13, 1998) involved several incidents of
misconduct on the part of a Dallas County judge. In a particular incident, the
offender identified himself as a judge and sought unmerited parking privileges, but
the African-American parking attendant refused to accommodate the judge. The
judge then referred to the parking lot attendant as
“n****r” and/or “black
motherf***er.” In assessing the judge’s conduct, the Court noted that the verbal
abuse and racial slurs were “serious misconduct” but “standing alone might justify
a reprimand or censure.” Finally, In re Agresta, 64 N.Y.2d 327, 476 N.E.2d 285, 486
N.Y.S.2d 886 (1985) involved a judge’s comments to two African-American
defendants at a sentencing hearing. Expressing his belief that one of the defendants
was lying about the acts of a third party, the judge stated, “I know there is another
n****r in the woodpile. I want that person out.” The court accepted the judge’s
claim that he had not intended the expression as a racial slur, but nonetheless found
the phrase to be offensive and derogatory, and imposed a public censure upon the
offending judge.
Considering the cases above and all of the factors favoring leniency toward
Judge Ellender, I find the sanction imposed by the majority, which amounts to a loss
1
For the exact language used, see 645 P.2d at 99-100.
3
of income of over fifty thousand dollars ($50,000), to be unduly harsh and would
impose a lesser sanction.
4
12/13/04
SUPREME COURT OF LOUISIANA
NO. 04-O-2123
IN RE: JUDGE TIMOTHY C. ELLENDER
On Recommendation for Discipline
From the Judiciary Commission of Louisiana
HIGHTOWER, J., dissenting.
I respectfully dissent from the penalty for those reasons assigned by Justice
Victory, and essentially would impose less severe sanctions than the majority.
12/13/04
SUPREME COURT OF LOUISIANA
No. 2004-O-2123
IN RE: JUDGE TIMOTHY C. ELLENDER
On Recommendation for Discipline
From the Judiciary Commission of Louisiana
LOMBARD, J., CONCURS
The state constitution mandates that judges not engage in conduct that brings
the judicial office in disrepute. Those who would write off Judge Ellender’s lapse in
judgment as a harmless prank requiring only a token sanction do not understand how
deeply such an act resonates throughout the African-American community as a harsh
reminder of a not too distant past. I believe, however, that educating a sitting judge
as to the reality of racial injustice and insensitivity in our daily lives will have more
far-reaching consequences than simply removing him. Requiring Judge Ellender to
undergo racial sensitivity training sends the message not only to Judge Ellender but
to the rest of the country that racial slurs and stereotyping, whether intentional or
merely thoughtless, will no longer be tolerated in Louisiana. Incorporation of such
training for all judges in Louisiana - white or black - into our continuing legal
education could be beneficial in preventing similar infractions of the judicial code of
conduct and promoting the impartial administration of justice to all our citizens.
Accordingly, I support the sanction crafted by the majority.
