Florida Parishes Juvenile Justice Commission by and on Behalf of the Florida Parishes Juvenile Justice District VS Hannis T. Bourgeois, L.L.P., Charles Phillip Hebert, CPA, and Phil Hebert, CPA, A Professional Accounting Corporation
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FOR PUBL CATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0 2012 CW 1003 FLORIDA PARISHES JUVENILE JUSTICE COMMISSION BY AND QN BEHALF OF THE FLORIDA PARISHES UVENILE JUSTICE DISTRICT VERSUS HANNIS T BOURGEOIS L CHARLES PHILLIP HEBERT CPA P AND PHIL HEBERT CPA A PROFESSIONAL ACCDUNTING CORPORATION y I udgment V rendered EP 6 201Z P On supervisory writs from the 21st Judicial District Court in and for the Parish of Tangipahoa Louisiana Trial Court No 2012 0000110 Honorable Federick S Ellis Judge Ad Hoc T JAY SEAL III ATTORNEYS FOR GLEN R GALBRAITH RESPONDENT PLAINTIFF GEORGIA K THQMAS FLORIDA PARISHES JUVENILE HAMMOND LOUISIANA JUSTICE COMMISSION WILLIAM E ATTORNEYS FOR WRIGHT JR BEVERLY A DELAUNE RELATOR DEFENDANT NEW HANNIS T BOURGEOIS L P ORLEANS BEFORE LOUISIANA PARRO KUHN PETTIGREW McDONALD AND HUGHES s KUHN The Florida Parishes 7uvenile ustice Commission on behalf of the Florida Parishes Juvenile Justice District filed suit against Hannis T Bourgeois L HTB Charles Phillip Hebert CPA and Phil Hebert CPA P for their alleged failures in detecting the theft of approximately 2 000 000 from the Cost Account of the Florida Parishes Juvenile Justice District District There are pending criminal charges against Brenda Bickford who served as the Secretary of the Commission from 2001 until early 2 11 It is alleged that Bickford created false invoices for a fictitious court reporting service B Reporting Inc which she paid converting the funds to her personal use The Commission alleges HTB negligently performed audits of he Commission and that the Hebert CPAs rendered bookkeeping services that were deficient in failing to detect the fraud HTB filed a Motion to Recuse En Banc seeking the recusal of all judges of the 21 Judicial District Z1 JDC under l Code Civ P art a 4 A 151 which provides A A judge of any court trial or appellate shall be recused when he 4 Is biased prejudiced or interested in the cause or its outcome or biased or prejudiced toward or against the parties attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings s HTB argument centers on the fact that two of the members of the Commission were appointed by the judges of the 21 JDC According to The 1 judges of the 21 Judicial District Court have recused themselves from Bickford criminal s cas 2 HTB the actions of those two commission members Peggy Hoover and Paul Johnson are at issue in this civil suit It is alleged that Johnson and Hoover signed many of the checks that were used to perpetuate the alleged fraud Commission by The fact that these two people were appointed o the the judges of the 21 JDC directly affects how their credibility will be viewed during the trial HTB also argues the Commission has an on relationship with the judges of the Z1 JDC due to regular going meetings with the judges in order to provide updates on the administiration of the District HTB argues such circumstances will impact the impartiality of the judges in this matter At the request of the judges on the 21 JDC the supreme court appointed an independent judge Judge Frederick Ellis to address the Motion to Recuse Judge Ellis denied the motion and noted in his reasons for judgment that there was no evidence of actual bias Although there may not have been evidence of actual bias in this case the United States Supreme Court has recognized objective standards requiring recusal when the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable Caperton v A Massey Coal Co Inc 556 U 868 877 129 S T S Ct 2d Ed 2Z52 2259 173 L i2D8 2009 In Caperton the United States Supreme Court addressed the issue of whether the Due Process Clause was violated when a recusal motion was denied The circumstances of the present matter concern a situation wherein the judges of the 21 DC appointed two members to the Commission the context of this current In lawsuit the defendants have placed the 3 reasonableness of the actions o those Commission members at issue As the court in Caperton noted sometimes an inquiry asks not whether the judge is actually biased but whether the average judge in his position is likely to be neutral or whether there is an unconstitutional potential for bias Caperton 556 U at 881 1Z9 S at 2262 S Ct In the present case not only did the z1 aDC appoint two of the Commission members but the judges of the 21 DC also have an on going relationship with the Commission Such circumstances clearly create a potential for bias Moreover it appears the standard for mandatory recusal has been modi by the recent decision of Tolmas v efferson ed 0555 Z012 La 4 87 So 855 3d 12 27 per curiam In Tolmas a landowner whose ancestor has secured a permanent injunction title in preventing the Parish of Jefferson from enforcing the zoning regulations regarding its properry sued the Parish to enforce the injunction landowner prevailed in the district court reversed The On appeal the Fifth Circuit On rehearing the landowner moved to recuse the author of the Fifth Circuit opinion on the grounds that the judge had an interes in the corporation that was the lessee of the commercial property adjacent to the property at issue placing the corporation in direct commercial competition with the landowner plaintifF panel denied the The other two members of the Fifth Circuit Motion to Recuse The plaintiff then sought writs to the supreme court which granted writs and found the recusal was warranted reversed the recusal decision vacated the court ruling on the merits and s transferred the matter to the Second Circuit Court of Appeal to be heard anew The supreme court noted that it was logical to conclude that 4 neighboring landowners and lessees would have an interest in the outcome of the litigation thus the judge recusal was warranted pursuant to La s I Code Civ P art 151 C A 4 The su P reme court further stated that the matter should be transferred to avoid even the appearance of impropriety Tolmas 87 So at 855 3d Likewise in the present case it is logical to conclude that the judges of the 21 JDC would be biased in favor of witnesses whom they appointed to the Commission and whose actions are now at issue in the present case The on relationship with the Commission and the judges of going the Z1 JDC also leads o he logical conclusion that the judges would be biased in favor of the Commission This is significant because HTB asserts the Commission lacked proper internal controls which contributed to its own failure to detect the fraud More importantly as the Tolmas opinion noted the desire to avoid even the appearance of impropriety was a valid cause to warrant the transfer of the matter to another jurisdiction Given the relationship between the judges of the 21 JDC and the members of the Commission we find that it is paramount to avoid the appearance of impropriety thus the district court ruling denying the Motion to Recuse En Banc is hereby s reversed Finally we also find this matter is distinguishable from the recent decision of Winkle v Relay Administration Board 201z La 0944 2 29 6 91 So 300 per curiam which found that a judge was not 3d statutorily mandated to recuse hersel from a class action suit in which the s judge potential interest in the case amounted to 13 in telephone charges 5 over a period of ten years While in Winkle the court held that such an interest was not sufficient such that the judge would be unable to conduct fair and impartial hearings we find that is not the case in the present matter The present matter directly involves the actions of individuals placed in such a position by the judges of the 21 JDC Accordingly the Motion to Recuse En Banc is hereby granted WRIT GRANTED AND MATTER REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINIDN I 6 STATE OF LOUISIANA COURT QF APPEAL FIRST CIRCUIT 2012 CW 1003 FLORIDA PARISHES UVENTLE USTICE COMMISSION BY AND ON BEHALF OF THE FLORIDA PARISNES UVENILE USTICE DISTRICT VERSUS HANNIS T BOURGEOIS L CIiARLES PHILLIP HEBERT CPA P AND PHIL HEBERT CPA A PR ACCOUNTING NAL FESSI CORPORATIQN BEFQRE PARRO KUHN PETTIGREW MCDONALD AND HUGHES 77 PARRO J dissents I would deny the writ because an independent judge appointed by the supreme court examined the motion to recuse and found no evidence of bias and the district judges in this matter have no direct financial interest in the outcome ofi the case as there was in Tolmas v Parish of Jefferson 0555 1Z supreme court recusal as La 4 12 Z7 in Tolmas did 87 3d So 855 Furthermore the not modify the standard for mandatory stated in the per curiam opinion fiound that recusal of the appellate judge Rather the supreme court was warranted due o his financial interest in the outcome of the case which was directly adverse to the interest of the plaintifF landowner Thus the Tolmas decision falls P C squarely within the ambi of LSA art 151 That case was 4 A transferred to another appellate court for consideration of the merits in order to avoid the appearance of impropriety that might be created by having the judges of the Fifth Circuit deciding a case in which one of their colleagues had a financial interest The matter before us does not involve this type o circumstance Therefore I respectFully dissent z
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