Disciplining Louisiana judges is a lot like “Fight Club.” The first rule: You don’t talk about it.
For the system to run as the state Supreme Court intended, everybody needs to keep quiet, preferably forever. At least that’s how the Judiciary Commission, which investigates allegations of judicial misconduct in the state, interprets it.
The commission is among the most secretive state bodies: It threatens to hold anyone who violates its confidentiality rules in contempt of court.
Its rules demanding secrecy are stricter and more sweeping than those for misconduct investigations into Louisiana lawyers, or for ethics probes into legislators and state and local government officials.
The rules say a complaint against a judge, any evidence supporting it and the commission’s proceedings — including their existence — must stay secret unless the Judiciary Commission recommends public discipline to the state Supreme Court. And that’s a remarkably rare occurrence.
Not a single recommendation for judicial discipline was made last year to the high court, although 543 complaints were filed and the commission launched 56 investigations. Over the past five years, the Judiciary Commission has opened in-depth investigations into 317 complaints. Just 12 have resulted in recommendations to the Supreme Court for judicial discipline, making those matters public. Even fewer have resulted in judges being suspended or booted off the bench.
During that time period, less than 1 percent of total complaints to the Judiciary Commission reached the threshold to become public.
The U.S. Department of Justice is not in the habit of sticking its nose in backroads Louisiana custody battles.
One result of all the secrecy is that people who witness judicial misconduct are often too fearful of punishment to speak publicly about it. Attorneys in Louisiana face their own ethical rules against criticizing judges, often leaving them silent as well.
Another result is that judges like Supreme Court Justice Jefferson Hughes III can amass a stack of complaints and apology letters without the public having a clue.
Hughes was elected and re-elected to the state’s highest office without voters having any idea he was the subject of complaints that the Judiciary Commission pursued. In fact, he was the subject of a multiyear FBI probe and a Judiciary Commission investigation in which witnesses were lined up to testify against him. In 2004, Hughes wrote at least three apology letters over his conduct.
None of it was made public, and Hughes won a new 10-year term on the high court last year without opposition. At 67, he cannot seek another term. And the public may never know how the Judiciary Commission chose to deal with him.
Voters will also likely remain in the dark about which other judges across Louisiana might have committed or owned up to misbehavior.
It’s a lousy system, according to some experts.
“It’s pretty important that when there has been some sort of misconduct, the public can’t have that hidden from them,” said John Strait, a Seattle University School of Law professor who has served on Washington state’s judicial ethics advisory committee.
The Louisiana Supreme Court announced September 6 that people who filed complaints about judges, judge respondents and witnesses to Judiciary …
There are 295 state judges serving in Louisiana, from Hughes and his six Supreme Court colleagues down to the district court judges across the state’s 42 judicial districts, according to the Supreme Court’s latest annual report.
The secretive process applied to Hughes also applies to all of those judges, as well as to another 72 judges on city and parish courts, and to Louisiana’s 385 justices of the peace.
In 34 other states — among them Alabama, Arkansas, Georgia, Tennessee and Texas — misconduct proceedings against judges become public when a judge is charged, responds to a charge, or when a fact-finding hearing begins.
But when the Louisiana Legislature considered a bill a few months ago to increase transparency here, Judiciary Commission officials defended their system and its protections for judges.
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State Rep. Jay Morris, a Monroe Republican and an attorney, questioned the purpose of a secret admonishment.
“How will the public know and have confidence that there aren’t 100 instances of admonishment that have gone unheeded?” Morris asked. “We don’t know.”
Lawyers not shielded
The gag order begins the instant someone complains to the Judiciary Commission about a judge. It’s a blunt edict: no speaking about a complaint, or an intention to file one. Those with grievances are even cautioned to limit the help they accept drafting those complaints, for fear of leaks.
The Judiciary Commission’s website says people who report misconduct can talk about “the underlying events” that inspired their complaints. Many people choose to simply keep quiet.
A spokesman for the Louisiana Supreme Court said Friday — after The Advocate had reached out for weeks — that scheduling conflicts would prevent Judiciary Commission staff from discussing the process until late August.
Several people contacted by this newspaper about a 20-year-old set of judicial complaints against Hughes said they believed they couldn’t talk about it publicly, ever.
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In Hughes’ case, no one did for 15 years, even after he had penned at least three apology letters, likely as part of a negotiated deal to keep the allegations secret.
Brenda Nicholson and David Fleming, who each filed complaints against Hughes regarding unrelated child custody cases in the late 1990s, said they were told they could not discuss Judiciary Commission proceedings. Both chose to open up about them after The Advocate began reporting on the apology letter that Hughes sent to Nicholson.
The Louisiana Supreme Court a decade ago set a much higher standard of transparency for complaints against lawyers. The court deemed unconstitutional a provision that had barred “all participants” in an attorney disciplinary proceeding from divulging it until formal charges were filed.
Embattled state District Judge J. Robin Free resigned Friday, just three weeks before he was set to return to the bench after a yearlong suspension.
The court found that “protecting the reputations of ethical attorneys” did not justify curtailing free speech.
Dane Ciolino, a Loyola University law professor who represented a man accused of breaching the secrecy rule, said the same argument should apply to judges.
“There’s no good reason why the judicial discipline system should be much more secretive than the lawyer discipline system. But it’s always been that way,” said Ciolino, an expert in legal ethics.
“The better policy argument is that the judicial discipline system should be more open” than the process for attorneys accused of misconduct, he said.
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A federal judge ruled similarly in 2014 in a case involving the Louisiana Board of Ethics. U.S. District Judge Martin Feldman in New Orleans found that the state law mandating secrecy in those proceedings for everyone involved, punishable by a fine or imprisonment, was unconstitutional.
Charles Plattsmier, chief disciplinary counsel for the Attorney Disciplinary Board, explained that his office is the only entity forbidden from discussing attorney discipline proceedings.
“You are free to speak to whomever you choose, about whatever you choose,” he said. “I’m the only one who’s got a muzzle.”
Threats for violations
But the muzzle for the Judiciary Commission might as well be fashioned from military-grade steel.
Not only are people told they can't reveal their complaints, they often never learn the results.
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Though the Judiciary Commission can privately “remind,” “caution” or “admonish” judges, those slaps on the wrist are not considered discipline. Judges can also negotiate “deferred discipline” in which they agree to perform certain actions in exchange for the commission shelving a public recommendation.
It appears that Hughes negotiated either a private chiding or deferred discipline in 2004. He may have agreed to write the apology letters as a trade-off for not being publicly disciplined. He might have received a counseling letter; that, too, is a secret document.
Hughes has declined to shed any light on what happened.
“If the end result is a judge writing an apology to people throughout the state, the public should know that’s the outcome,” said Gabe Roth, executive director of the national advocacy group Fix the Court, which pushes for transparency and accountability in the judiciary. “And such an outcome should be weighed by legislators who want to know the system and by voters who want to know who their judges are.”
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Strait, the Seattle law professor, said writing apology letters is not “in the normal range of sanctions most commissions would use.” He found the practice especially bizarre if the letters are not made public. But they seem to be a go-to option for Louisiana judges looking to avoid public sanction.
Baton Rouge District Judge Trudy White hand-delivered such a letter in 2017 to her colleagues at the 19th Judicial District. She wrote that she regretted a campaign video in which she appeared alongside a man in a prison jumpsuit who bragged White was about to send him home.
White delivered the letter after an unexplained three-month hiatus from the bench. She wrote that she understood why some believed the video implied she would treat defendants leniently, and that it could damage public respect for the judiciary.
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"To the extent that my conduct has put our court in a negative light, I am truly sorry,” White wrote. A woman in White’s office who refused to give her name said the judge would not comment for this story.
A public apology
A few Orleans Parish judges wrote apologies several years ago for giving themselves all-expenses-paid health coverage using fees paid by criminal convicts.
One of them, Criminal District Court Judge Camille Buras, had an apology printed in The Times-Picayune’s legal section in 2015, a few years after the state Legislative Auditor's Office found that Buras and her colleagues had improperly spent $637,000 on bonus insurance benefits over three years.
Buras wrote that she was publicly apologizing for her “past receipt of certain employment benefits.” She added that she had begun to repay the costs of those benefits, though how much she was forced to reimburse remains a mystery. Buras has refused to discuss it.
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Civil District Court Judge Kern Reese this week acknowledged writing a similar apology letter but said he can’t remember where it was published.
Another Orleans Parish Criminal Court judge, Darryl Derbigny, fought the allegation. The Judiciary Commission recommended public censure, but the Louisiana Supreme Court disagreed. It spared Derbigny an ethics violation, ordering him only to repay $10,000 in ill-gotten insurance payments. Several other criminal and civil court judges were implicated in the scandal, but only Derbigny's case became a public record.
In Hughes’ case, Nicholson and Fleming both said they were frustrated to receive what they described as insincere apology letters from Hughes without knowing what steps were taken to investigate or discipline him.
It’s a common refrain among people who have complained to the Judiciary Commission. Dean Gilbert, a New Orleans resident, filed a complaint against Civil District Court Judge Sidney Cates IV after a heated 2016 hearing related to a family succession case. Cates had kicked out the public and the media from his courtroom before holding Gilbert in contempt and ordering him to spend 12 days in prison.
In return, Gilbert said, he received a letter that was vague on the outcome of his complaint, but crystal clear on the need to keep it all secret.
As a justice of the Louisiana Supreme Court, Jeff Hughes is supposed to embody the highest standards of judicial conduct.
“Following a review of this matter, the commission took appropriate action and then closed the file,” reads the commission’s April 3, 2017, response.
“Personal and confidential” is the bold, all-caps warning at the top of the letter. Below is a threat that “violations of the confidentiality rule will be taken very seriously.” In case the letter wasn’t clear, the envelope is stamped “CONFIDENTIAL” in red ink.
Cates did not return messages for this story.
Gilbert requested a confidentiality waiver in 2017 so he could include information about his complaint in a lawsuit appeal. The Supreme Court denied his request.
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Others have shared letters with The Advocate — asking the newspaper not to publish identifying information for fear of the commission’s retribution — that say the commission screened their complaints or determined the allegations went beyond the commission’s scope. One letter reads, “while you may not agree with this confidentiality rule, it is a rule everyone must abide by.”
Attempts at change
State Rep. Jerome Zeringue, a Houma Republican, challenged the cloaked process after experiencing it himself through a complaint he filed against a judge.
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He said he went two years with few updates before being told the Judiciary Commission was closing his case without enough evidence to proceed.
Zeringue sponsored a bill this year that would have required the commission to make any actions it takes in a case public — including secret reminders, cautions and admonishments. That’s the common practice in most states, he noted during testimony.
His bill passed unanimously out of committee but narrowly failed on the House floor. In a recent interview, Zeringue said the Hughes case underscores the need for making more information about judges public.
“The fact that they’re elected should allow for the public who are electing them to have a full understanding, or at least a better idea, of who these officials are and their temperament on the bench,” Zeringue said.
His constituents, and those appearing before his court, almost needed a play-by-play commentary to keep up with the games played by their judg…
Roth, who leads the group Fix the Court, described the process as designed to protect a tight-knit circle of jurists.
“There are public figures writing documents about a complaint from the public — in that case, you should be erring on the side of transparency,” Roth said.
The Judiciary Commission fought Zeringue’s bill, although the commission itself submitted a proposed rule change to the Supreme Court in 2018 that would have allowed people who testified during Judiciary Commission proceedings to speak freely about them once a file was closed.
The Supreme Court has not adopted the change, and its spokesman said he could not comment "on reasons underlying actions of the Supreme Court."
Commission Chairwoman Suzanne Stinson wrote to legislators that the confidentiality rules the Supreme Court adopted “balance the interests” of the public, the complainant and the judges under scrutiny.
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Stinson maintained that “similar confidentiality protections are afforded to legislators,” referencing confidential Board of Ethics proceedings.
But unlike judiciary cases, Board of Ethics cases become public once the board files charges against a public official. At that point, hearings to resolve them are also open to the public; any negotiated settlement between a public official and the board is public.
Judiciary Commission counsel Kelly McNeil Legier told the legislature’s House and Governmental Affairs Committee in April that the commission’s tools for privately resolving complaints were reserved for minor infractions frequently involving inexperienced judges.
For instance, a neophyte judge might receive a private caution or admonishment for offering a personal opinion to a defendant appearing before them, she said.
“By giving immediate education and counseling, you’ve given protection to the public by helping this judge stay on the right path,” she insisted.
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Yet as Hughes’ case shows, some seasoned judges can also quietly receive the “education and counseling” treatment. Hughes was well into his second term when complaints came in against him that were far more serious than those Legier described. Yet his case too was resolved in secret.
Judiciary Commission officials also argued that the separation of powers doctrine bars the Legislature from forcing transparency on the disciplinary process for judges, but Zeringue disagreed.
During testimony on the bill, state Rep. Mark Wright, R-Covington, compared judicial elections in Louisiana to high school student council races, given how little people generally know about candidates.
“If there’s been a history built on a judge, should not the public be able to know, have access, so they can make an informed decision about whether this judge is the best candidate compared to an alternate candidate?”asked state Rep. Barry Ivey, a Republican from Central.
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Livingston Parish District Judge Robert Morrison III, who once served alongside Hughes, said in his testimony against the bill that there was another avenue for judges to face accountability.
“Judges outside of the realm of disciplinary proceedings certainly catch it in the press from time to time," he said.