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In re Free

Supreme Court of Louisiana

December 9, 2014

IN RE: JUDGE J. ROBIN FREE

For Applicant: Mary Frances Whitney, Michael Bewers, OFFICE OF SPECIAL COUNSEL.

For Respondent: John P. Aydell, Jr.; Steven Robert Scheckman, SCHIFF, SCHECKMAN & WHITE.

Clare Dolores Fiasconaro, Commission Counsel.

OPINION

Page 772

[2014-1828 La. 1] JUDICIARY COMMISSION OF LOUISIANA

CLARK, Justice

This matter comes before the Court on the recommendation of the Judiciary Commission of Louisiana (the " Commission" ) that respondent, Judge J. Robin Free of the 18th Judicial District Court, Parishes of West Baton Rouge, Iberville, and Pointe Coupee, be suspended without pay for thirty days and be ordered to reimburse and pay to the Commission $6,723.64 in hard costs. The Commission conducted an investigatory hearing, made findings of fact and conclusions of law and determined that Judge Free violated Canons 1, 2, 2(A), 3(A)(4), 3(A)(6), and 6(B)(2) of the Code of Judicial Conduct and Article V, Section 25(C) of the Louisiana Constitution. After reviewing the record, we find all of the charges against Judge Free, except his failure to recuse in Count I, were proven by clear and convincing evidence and we accept the recommendation of discipline of the Commission that Judge Free be suspended without pay for thirty days and be ordered to reimburse and pay the Commission $6,723.64 in costs.

FACTS AND PROCEDURAL HISTORY

Judge Free was elected in 1996 and assumed his office on January 1, 1997. He has served continuously since that time, and was recently reelected without opposition to a new six-year term which will commence on January 1, 2015. In February 2013, the Commission filed Formal Charge 0314 against Judge Free, consisting of two counts of alleged misconduct. After Judge Free answered the [2014-1828 La. 2] Formal Charge, Judge Patrick Schott was appointed as a hearing officer to conduct proceedings in this matter pursuant to Supreme Court Rule XXIII, § 29. Following the hearing, the Hearing Officer filed a report with the Commission containing proposed findings of fact and conclusions of law. Thereafter, the Commission established a briefing schedule, as required by Supreme Court Rule XXIII, § 29, and ordered Judge Free to appear on April 25, 2014 for questioning by the Commissioners. On August 26, 2014, the Commission filed its recommendation in this court, finding that the Formal Charge was proven by clear and convincing evidence and recommending that Judge Free be suspended without pay for thirty days.

Count I

This charge pertains to allegations that Judge Free engaged in improper ex parte communications with counsel for a party in an environmental contamination class action

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lawsuit, and improperly handled a request to recuse himself from the case due to his mother's status as a class member.

In 2001, a class action petition for damages was filed in the case captioned Noretta Thomas, et al. v. A. Wilbert & Sons, LLC, et al., No. 55,127 on the docket of the 18th JDC. Plaintiffs alleged that the wells which provided drinking water to residents of the Myrtle Grove Trailer Park, located in Plaquemine, Louisiana, were contaminated by vinyl chloride. One of the defendants in the Thomas class action, The Dow Chemical Company, was represented by attorney F. Barry Marionneaux and his son and law partner, F. Charles Marionneaux. Dow's general counsel, Karen Eddlemon, was lead counsel for Dow and was responsible for overseeing Dow's defense in the Thomas class action. [2014-1828 La. 3] On August 2, 2007, Judge Free signed a judgment on class certification that defined the Thomas class boundary by reference to certain plume maps introduced in the class certification hearing. It is undisputed that Judge Free's mother, Gloria Cedotal, does not reside or own immovable property within the boundary referenced in this judgment. On August 13, 2007, plaintiffs filed a motion for new trial, seeking to amend the class certification judgment to reflect which sub-class each class representative represented. On August 20, 2007, Judge Free issued an order vacating the August 2, 2007 judgment pending further proceedings.

Thereafter, on August 29, 2007, Judge Free signed a second judgment on class certification. While Judge Free believed that this judgment only addressed the issue of sub-classes of plaintiffs, the judgment also omitted the reference to the plume maps contained in the August 2, 2007 judgment, modified the western boundary, and changed the southern boundary of the Thomas class.[1] Ms. Cedotal owns and resides [2014-1828 La. 4] in a house located on immovable property located at 57810

Page 774

Orange Drive in Plaquemine, and she also owns the property located at 57811 Orange Drive. This residence and these properties are located within the geographic description of the class boundaries set forth in the August 29, 2007 class certification judgment signed by Judge Free.

In November 2009, Barry Marionneaux was investigating sources of groundwater contamination in areas of North Plaquemine. While looking at a well on Orange Drive, it occurred to him that Judge Free's grandparents lived on Orange Drive, and that Judge Free's mother must live in the general area.[2] After verifying that his recollection was in fact true, Barry Marionneaux shared this information with Dow's other attorneys and then contacted and met with Patrick Pendley, one of the plaintiffs' lead counsel, to discuss the situation.[3]

On December 1, 2009, Barry Marionneaux wrote a letter to Judge Free to advise that the issue of his recusal was being raised due to his mother's status as a class member and party within the meaning of La. Code Civ. P. art. 151(A)(3).[4] Mr. Marionneaux's letter advised that it was Dow's understanding that Ms. Cedotal resided within the class boundaries as set forth in the August 29, 2007 class certification judgment, which had become final on October 2, 2009, when writs were denied by this court.[5] The letter concluded by stating, " [i]f you have any questions or need anything further from us, please do not hesitate to call." Copies of Mr. [2014-1828 La. 5] Marionneaux's letter to Judge Free were delivered to opposing counsel via e-mail and he requested, on behalf of Dow, that an expedited status conference be scheduled to address the issues raised therein.

After receiving Barry Marionneaux's letter, Judge Free did not schedule a status conference, but instead telephoned Mr. Marionneaux to discuss the recusal issue and his mother's status as a party. Barry Marionneaux was not available, so Judge Free spoke with Charles Marionneaux. During this conversation, Judge Free was upset and expressed his opinion that this was a low move and a " cheap shot" by Dow.[6] He also insisted that his mother was not a class member or a party to the Thomas suit for the purposes of recusal within the meaning of La. Code Civ. P. art. 151(A)(3), despite the fact that her residence and properties were located within the geographic description of the class boundaries as set forth in the August 29, 2007 class certification judgment.

Shortly thereafter, according to the testimony of Charles Marionneaux, Judge Free again telephoned him and stated that

Page 775

he had spoken to Mr. Pendley about the recusal issue, and that Mr. Pendley had said Judge Free's mother's property was not located in a contaminated area. For his part, Judge Free said he told Charles Marionneaux that the matter " could be resolved very easily by discussion with plaintiff's counsel and, if necessary, revision of the class definition..." In his testimony, Mr. Pendley denied speaking to Judge Free as recounted by Charles Marionneaux. Judge Free stated that he did attempt to telephone Mr. Pendley but that [2014-1828 La. 6]he did not recall speaking with him.[7]

On December 1, 2009, after receiving Judge Free's telephone calls regarding the recusal issue, Charles Marionneaux reported the calls and the substance of Judge Free's comments to Ms. Eddlemon and the Dow litigation team. Dow filed a motion for recusal on December 4, 2009, after Judge Free declined to schedule a status conference and informed Charles Marionneaux that he would not self-recuse. On December 14, 2009, Ms. Eddlemon filed a complaint against Judge Free with the Commission. On February 3, 2010, a recusal hearing was held before Judge James Best, following which Judge Best granted Dow's motion to recuse Judge Free.

In Count I of the Formal Charge, the Commission alleges that Judge Free's conduct as set forth above violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2(A) (a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 3(A)(4) (a judge shall perform judicial duties without bias or prejudice), 3(A)(6) (except as permitted by law, a judge shall not permit private or ex parte interviews, arguments, or communications designed to influence his judicial action in any case), and 3(C) (a judge shall disqualify himself in a proceeding in which disqualification is required by law) of the Code of Judicial Conduct. The Commission also alleged that Judge Free engaged in willful misconduct relating to his official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, all in violation of La. Const. art. V, § 25(C).

In his answer to the Formal Charge, Judge Free admitted that his mother resides within the " imprecise general description" of the Thomas class boundaries set forth [2014-1828 La. 7] in the August 29, 2007 judgment, but he pointed out that a " precise" definition in the signed judgment " would have and should have included a reference to the maps" referenced in the August 2, 2007 class certification judgment. He also acknowledged that in hindsight, he should not have accepted the " invitation" in Barry Marionneaux's letter to call him, and that his telephone call to Barry Marionneaux, and his conversation with Charles Marionneaux, were " ill-advised." Judge Free conceded that his ex parte communication with Charles Marionneaux violated Canon 3A(6) of the Code of Judicial Conduct.

The Commission voted to adopt all of the proposed factual findings made by the Hearing Officer regarding Count I, which are summarized above. In addition, the Commission adopted specific proposed conclusions of fact made by the Hearing Officer, including the following: (1) the plume maps did not include the home owned by Judge Free's mother, and thus she was not a member of the class according to the August 2, 2007 judgment; (2) because the maps were excluded, the class

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description in the August 29, 2007 judgment clearly indicates that Judge Free's mother is a class member; (3) Judge Free knew or certainly should have known that his mother lived within the class boundary on December 1, 2009 when he received Barry Marionneaux's letter; and (4) Dow's motivations in seeking the recusal of Judge Free are irrelevant to the issue of Judge Free's judicial misconduct.

The Commissioners made additional findings of fact relative to Count I based upon their questioning of Judge Free and examination of the evidence introduced at the hearing. Briefly, these findings may be summarized as follows:

At his appearance before the Commission, Judge Free maintained that his mother was not a member of the Thomas class as that class was described in the August 29, 2007 judgment and that the August 2, 2007 and August 29, 2007 [2014-1828 La. 8] judgments described the same geographical area. Judge Free testified that the omission of the reference to the plume maps in the August 29, 2007 judgment did not change the geographical area of the class because the class area in that judgment was still " generally described as" bounded by certain areas. Judge Free maintained that this language had to be interpreted in light of the history of the case, in which all the parties understood and acted as if the class area was depicted in the plume maps, both before and after the signing of the August 29, 2007 judgment. Judge Free acknowledged, however, that, based on the language in the August 29, 2007 judgment alone, his mother's property was located in the area described by the judgment.

At his appearance before the Commission, Judge Free acknowledged that, if the parties disputed whether the omission of the reference to the plume maps from the August 29, 2007 judgment was intentional or inadvertent, then the judgment could have only been amended through a contradictory hearing.[8] Judge Free further admitted that he would have been unable to preside over such a hearing if it involved a determination as to whether his mother was a class member. Judge Free stated: " So in this case ..., if they'd have said we have to make a determination is your mother in or out, I would not have been comfortable with that and I would not have done that." Judge Free then stated: " If we had to decide was this a mistake that was made and it should've never happened, I would've [had] no trouble deciding that, if that makes any sense."

Finally, since being formally charged, Judge Free has admitted and conceded that his telephone call to Charles Marionneaux was an improper and ill-advised ex [2014-1828 La. 9] parte communication in violation of Canon 3(A)(6). Judge Free initiated the telephone call to Charles Marionneaux in response to Barry Marionneaux's letter raising the recusal issue. At his appearance before the Commission, Judge Free expressed regret about making the telephone call and not scheduling a status ...


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