In Re: The Judicial Commitment of M.M. (Brossette Contempt Proceeding)

Judgment rendered September 23, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,577-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

IN RE:
THE JUDICIAL COMMITMENT OF M.M.
(BROSSETTE CONTEMPT PROCEEDING)

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 618253

Honorable Robert Paul Waddell, Judge

*****

STEPHANIE M. BORGHARDT Counsel for Appellant,
EDWARD M. BROSSETTE Edward M. Brossette (Contempt)
KRYSTAL AIRS BROWN
NEIL RISLEY ELLIOTT, JR.

*****

Before PITMAN, GARRETT, and STEPHENS, JJ.

PITMAN, J., concurs for the reasons assigned by Garrett, J.

GARRETT, J., concurs with written reasons.

STEPHENS, J.

Edward M. Brossette appeals a judgment of the First Judicial District

Court, for the Parish of Caddo, State of Louisiana. In that judgment,

Brossette’s motion requesting an impartial judge was denied. In the same

judgment, Brossette was determined to be in constructive contempt of court

and ordered to pay a fine of $100.00 and serve four (4) hours of

confinement in the Caddo Correction Center. For the following reasons, we

reverse the trial court’s judgment and remand for additional proceedings.

FACTS

This appeal stems from a judicial commitment proceeding

concerning M.M., a woman who was 57 years old at the time of her

commitment. Although this appeal does not pertain to her judicial

commitment, it is necessary to address the details of that proceeding as they

directly relate to the issues on appeal.

M.M. suffers from a dual diagnosis—schizoaffective disorder (a

mental disorder) combined with a mild intellectual disability (a

developmental disability). This dual diagnosis created a procedural

problem for the Louisiana Department of Health (the “LDH”), Brossette,

and the trial court, specifically Judge Robert Waddell. The relevant and

ongoing issue in the proceedings was the applicable statutory law for her

commitment.1 For her developmental disability, M.M. was receiving

support from the Office for Citizens with Developmental Disabilities

(“OCDD”), which operates under the umbrella of LDH. However, M.M.’s

1
Judicial commitment proceedings for individuals with mental illness and
substance-related or addictive disorders are provided for in La. R.S. 23:54; whereas, La.
R.S. 28:454.6 relates to judicial commitment proceedings for individuals with
developmental disabilities.

mental illness ultimately deteriorated to a point where she was considered

to be dangerous to herself and others, and the OCDD allegedly could no

longer address or meet M.M.’s needs. Thus, on July 22, 2019, M.M. was

admitted to Lafayette General Hospital for inpatient psychiatric treatment.

LDH determined that M.M. needed long-term inpatient psychiatric

treatment to stabilize her, and the only available program LDH could locate

was at Brentwood Hospital (“Brentwood”) in Shreveport. M.M. was

admitted to Brentwood on July 25, 2019, prior to the filing of the petition.

On July 31, 2019, the petition for commitment was filed pursuant to La.

R.S. 28:54, et seq. by the LDH, Office of Behavioral Health, represented by

Brossette.

An order was entered by the trial court setting a commitment hearing

for August 7, 2019. Dr. Olufemi Ogundeji was ordered to exam M.M. and

prepare a report to determine if she met the criteria for legal commitment.

In that same order, M.M. was appointed an attorney by the Mental Health

Advocacy Service (“MHAS”), which ultimately assigned attorney Al Sale

to represent her. On the day of the scheduled hearing, Sale filed a motion

for dismissal claiming he was not given the requisite reasonable notice with

a physician’s report pursuant to La. R.S. 28:54(D)(1).2 Sale also alleged a

judicial commitment should have been filed under the state’s developmental

disability law to assure that M.M. received appropriate treatment and

benefits under that area of the law, specifically La. R.S. 28:454.5, et seq.

At the August 7 hearing, Judge Waddell noted Brossette had not filed

the physician’s report. Sale pointed out that Brossette had failed to produce

2
The statute requires that a written physician’s report be provided to the
individual’s attorney at least three days prior to a commitment hearing.
2

the requisite written report by Dr. Ogundeji as Judge Waddell had ordered.

The record reflects that Brossette apparently failed to inform Dr. Ogundeji

he was to prepare a report for the trial court. As a result, Sale also brought

up the issue of having OCDD added to the proceedings. The commitment

hearing was continued until August 14, and Brossette amended the petition,

alleging that M.M.’s treating physician at Brentwood would prepare a

report and have it to MHAS at least three days prior to the hearing.

The commitment hearing commenced on August 14, 2019, and the

record reflects an “off the record discussion” was held as to the timeliness

of the required physician’s report. Brossette was admonished by Judge

Waddell, and he informed Brossette, “[t]here’s no excuse for that.”

However, the proceeding commenced. Dr. Ogundeji testified that M.M.

had required acute, inpatient psychiatric hospitalization eleven times in the

last eight months. He testified her behavior was “very unmanageable at this

time.” Dr. Ogundeji concluded that M.M. was dangerous to herself and

others and met the criteria for a mental health commitment. M.M. did not

refute the LDH’s evidence and did not request an independent medical

opinion. Based on M.M.’s demeanor (she had an outburst requiring her

removal from the hearing) and Dr. Ogundeji’s report and testimony, Judge

Waddell concluded,

[t]here’s no question that the lady is a danger to herself or
others and gravely disabled . . . . I’m going to commit her to
LDH, but I’m going to order that this case be continued two
weeks for placement. The real issue here is placement and
what services she can get.

Significantly, no judgment was signed at that time committing M.M., and

the matter was continued to August 28, 2019, purportedly in order to

determine M.M.’s placement.
3

Prior to the scheduled August 28 placement hearing, the record

reflects an opening became available at Northlake Behavioral Health

System (“Northlake”) in St. Tammany Parish. Brossette asserts he notified

the trial court and Sale by e-mail on August 27 of the opening at Northlake;

however, Sale informed Brossette he opposed the move. Brossette claims

no opposition to the relocation was made by the trial court, and on the same

day, despite the objection by Sale, LDH transported M.M. from Brentwood

to Northlake.

At the August 28 placement hearing, Judge Waddell informed

Brossette he had not intended for M.M. to be placed until the placement

hearing had occurred. He also informed Brossette that M.M. had not been

judicially committed to the custody of LDH and refused to sign the

prepared commitment judgment. Sale explained he also refused to sign the

judgment because the LDH amended petition only cited mental health law

and made no mention of the applicable developmental disability law.

Further, Sale did not agree to waive M.M.’s appearance at the subsequent

hearing; thus, the trial court ordered M.M. be returned to Caddo Parish for

the next hearing. Judge Waddell additionally ordered that M.M. be

returned for further evaluation and determination as to proper services on

her behalf.

On September 5, 2019, Brossette filed a motion and order for

dismissal of the amended petition—notably, the trial court still had not

issued a judgment on the commitment proceedings at this time. Brossette

asserted in the motion that he was under the impression M.M. had been

committed to the custody of LDH, and he referenced the trial court minutes

from the initial proceeding. Further, he asserted that based on this
4

assumption, LDH placed M.M. at Northlake on September 27. Therefore,

after receiving a Physician’s Emergency Certificate (“PEC”), he sought

dismissal of the petition, which would allow Northlake authority to retain

M.M. as a patient. Brossette claimed the PEC made LDH’s amended

petition moot. In response, Sale filed a reconventional demand asserting

M.M. had been transferred to Northlake and not returned to Caddo Parish in

violation of the trial court’s order. Sale alleged M.M. was not receiving

treatment for her developmental disability, and her rights as a mental

health/developmental disability patient were violated by the PEC. He

requested a determination regarding the appropriate placement for M.M. as

per the developmental disability law.

The parties returned for a September 9, 2019 hearing, which

commenced with the trial court’s attention to Brossette’s motion to dismiss

the judicial commitment. Describing the case as being “fouled up from the

first part,” Judge Waddell denied Brossette’s motion; however, he

ultimately entered a judgment finding that M.M. suffered from “mental

illness” causing her to be a danger to herself and others. M.M. was

judicially committed to the custody of LDH for a period not to exceed 180

days. Further, LDH was ordered to ensure M.M.’s continued eligibility and

access to services and the least restrictive placement for her developmental

disability. Also, at that hearing, Judge Waddell stated on the record that he

was considering citing Brossette and/or LDH with contempt of court. A

hearing to determine that issue was set for September 11, 2019.

5

The September 11 hearing commenced with Judge Waddell noting:

Mr. Brossette is back in the courtroom today for contempt.

I’ve given this a lot of thought, Mr. Brossette, and I think
you’re in contempt of court, I think in direct contempt.

****

To me, what you did was even more blatant, because I think
you just did not do what I said.

Then, Judge Waddell determined Brossette to be in contempt of court,

fining him $500 and sentencing him to 24 hours in jail—all of which he

suspended. At that point, Judge Waddell reviewed, in detail, the

proceedings and his reasons for concluding Brossette was in contempt.

Brossette refused to “accept” Judge Waddell’s finding, objected, and

requested a hearing on the matter in order to dispute the reasons for the

contempt holding. The matter was continued to October 15, 2019.

On October 1, 2019, Judge Waddell filed his own motion against

Brossette, a rule nisi for contempt of court. In that filing, Judge Waddell

recounted the series of events in connection with M.M.’s judicial

commitment, concluding with the claim that Brossette’s actions constituted

constructive contempt in that he: failed to timely file the physician’s report;

failed to include OCDD in the matter; transported M.M. to Northlake

without authority by the trial court; and, failed to transport M.M. back to

Caddo Parish after specifically ordered to do so.

In response to Judge Waddell’s rule nisi, Brossette filed a motion

requesting an impartial judge, citing Kidd v. Caldwell, 371 So. 2d 247 (La.

1979). He argued Kidd mandated claims of constructive contempt should

be tried “before a judge other than the one toward whom the contumacious

6

behavior was directed.” He also argued that consideration by another judge

of the contempt claims “would be better for the appearance of justice.”

A hearing was held on October 15, 2019, and Judge Waddell began

by first considering Brossette’s motion for impartial judge, which he

denied. The judge reasoned that, unlike Kidd, he and Brossette were not

contentious or combative. Judge Waddell stated he simply believed

Brossette circumvented and/or ignored his orders. Then addressing the

contempt charges, Judge Waddell went through a discussion of the claims

made in his rule nisi, noting reasons he believed Brossette was in contempt.

After explaining those reasons, Judge Waddell fined Brossette $100 and

ordered him to serve four hours in jail at the Caddo Correctional Center,

notably a more severe penalty than originally imposed on September 11.

Brossette sought relief through a writ application to this court, which

was granted and remanded for perfection of appeal. This court also stayed

execution of his sentence pending final disposition of this matter. State in

the Int. of M.M. (In Re Brossette Contempt Proceeding), 53,379-CW (La.

App. 2d Cir. 10/18/19). This appeal ensued.

DISCUSSION

In Brossette’s first assignment of error, he maintains the trial court

erred in denying his motion requesting an impartial judge (i.e., recusal).

Brossette recognizes that La. C.C.P. art. 154 states, “If a valid ground for

recusation is set forth in the motion, the judge shall either recuse himself, or

refer the motion to another judge or a judge ad hoc[.]” He also recognizes

the trial court cited him with “constructive contempt” as punishment for

disobeying the trial courts’ order(s). In support of his argument that the

trial erred in denying his motion for an impartial judge, Brossette cites
7

Kidd, supra, arguing the case “traverses the general La. C.C.P. art. 154

requirement . . . of having to plead a valid ground for recusal in his Motion

and mandates that the constructive contempt charges brought against . . .

Brossette should have been heard by another judge.” Whereas Brossette

submits Kidd would mandate that constructive contempt charges compel

consideration by an “impartial” judge, the language in Kidd does not

warrant such a broad application as it was specifically limited to the facts

presented in that case. Id., at 256. Thus, we look to statutory law

pertaining to the recusal of judges.

Louisiana C.C.P. art 154 provides:

A party desiring to recuse a judge of a district court shall file a
written motion therefor assigning the ground for recusation.
This motion shall be filed prior to trial or hearing unless the
party discovers the facts constituting the ground for recusation
thereafter, in which event it shall be filed immediately after
these facts are discovered, but prior to judgment. If a valid
ground for recusation is set forth in the motion, the judge shall
either recuse himself, or refer the motion to another judge or a
judge ad hoc, as provided in Articles 155 and 156, for a
hearing.

Louisiana C.C.P. art. 151 provides the grounds upon which a judge

shall be recused from a matter. Specifically, La. C.C.P. art. 151 provides,

in pertinent part:

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
or the parties’ attorneys or any witness to such an extent that
he would be unable to conduct fair and impartial proceedings.

Notably, when Kidd was rendered in 1979, La. C.C.P. art. 151 was not in its

current form. The article was not amended until 1987, when it was

amended and reenacted to add the language, “[i]s biased, prejudiced, or

8

interested in the cause or its outcome or biased or prejudiced toward or

against the parties or the parties’ attorneys to such an extent that he would

be unable to conduct fair and impartial proceedings.” 1987 La. Sess. Law,

No. 579, §1.

The grounds for recusal enumerated in art. 151 are exclusive and do

not include a “substantial appearance of the possibility of bias” or even a

“mere appearance of impropriety” as causes for removing a judge from

presiding over a given action. Slaughter v. Bd. of Sup’rs of S. Univ. & Agr.

& Mech. Coll., 2010-1114 (La. App. 1 Cir. 08/02/11), 76 So. 3d 465, 471;

writ denied, 2011-2112 (La. 01/13/12), 77 So. 3d 970. Moreover, a judge is

presumed to be impartial. The party seeking to recuse cannot merely allege

lack of impartiality; he must present some factual basis. Further, the bias,

prejudice, or personal interest alleged must be of a substantial nature and

based on more than conclusory allegations. Covington v. McNeese State

Univ., 2010-0250 (La. 04/05/10), 32 So. 3d 223; Riddle v. Premier Plaza of

Monroe, L.L.C., 51,173 (La. App. 2 Cir. 02/15/17), 216 So. 3d 170.

Here, Judge Waddell, when presented with Brossette’s motion for an

impartial judge, had three options under art. 154: (1) deny the written

motion, deciding it lacked the requisite “ground for recusation”; (2) grant

the motion, recusing himself from considering the contempt charges; or (3)

“refer the motion to another judge” for consideration of the recusal issue.

Initially, Brossette maintains Judge Waddell erred in considering the

motion himself and denying it. We agree.

At the October 15 contempt hearing (and before addressing the

contempt charges against Brossette), Judge Waddell considered the recusal

issue, noting:
9

I’m going to deny that. This is not where this was direct
contempt where we had a fight. It’s been cordial the whole
way[.]

But I’m not going to have somebody else come in and make
this like a formal hearing like that. This is strictly a contempt
rule. If we did it by that rule, I just think it would be—it durn
sure wouldn’t be cost-effective, but it would be burdensome to
everybody.

After a brief recess, Judge Waddell revisited Brossette’s motion, which he

denied and briefly explained:

First, having the other judge appointed to hear the contempt
rule, I’m going to deny that. I did look at your case of Kidd.
Those were very contentious things, hard feelings between the
judge. I mean, almost combative between the lawyer and the
judge all during the thing and I can see some prejudice.

This does not rise to this[.] I’m not mad at [Brossette] or
anything else. I just think that he circumvented or just ignored
what I had ordered to do, and for that reason we’re going to
have it.

But I don’t think I need to bring in a third judge or a second
judge to come in and have a separate hearing. We can have it,
and then I’ll make the ruling on the contempt.

We recognize the trial court has discretion to determine if there is a

valid ground for recusal set forth in the motion. State in Interest of N.B.,

52,002 (La. App. 2 Cir. 03/16/18), 248 So. 3d 532, writ denied, 2018-0617

(La. 05/25/18), 243 So. 3d 568. However, considering the facts of this

matter, Judge Waddell abused his discretion in that a valid ground for

recusal was stated in Brossette’s motion under La. C.C.P. art. 151(A)(4).

Because the motion set forth a valid ground (which has already been

described herein), Judge Waddell was mandated to either recuse himself

outright or refer Brossette’s motion to another judge for consideration. La.

C.C.P. art. 154; State in Interest of N.B., supra. His summarily denying

Brossette’s motion, in light of the reasons given, was in error.

10

Next, not only did Judge Waddell err in considering Brossette’s

motion himself, but he erred in failing to recuse himself from the contempt

matter altogether. Here, grounds clearly existed for his recusal, and

Brossette’s request for an impartial judge was not based on mere

allegations, for the record contains ample factual basis supporting Brossette.

Judge Waddell, leading up to the contempt hearing, expressed he was

“aggravated,” “upset,” “slighted,” and “offended” as a result of Brossette’s

actions—all valid reasons (i.e., his bias, prejudice or interest) indicating that

Judge Waddell should have recused himself from considering the contempt

charges he imposed against Brossette. Those reasons are evident in the

various proceedings before the trial court—the record is replete with

instances demonstrating Judge Waddell’s bias.

For instance, at the September 9, 2019 hearing, a judgment

committing M.M. still had not been entered. At that hearing on the

commitment, the trial court was also addressing Brossette’s motion to

dismiss the commitment proceeding, and Judge Waddell stated:

I’m aggravated in this case, very aggravated. It has been
fouled up from the first part. And Mr. Brossette, I am very
upset with your actions in this case[.]

Then, Judge Waddell went through a brief chronology of the proceedings,

before elaborating:

Bottom line is I said bring her in and give Mr. Sale notice. It
wasn’t anything arbitrary. It wasn’t misunderstood. It could
not have two connotations. It was as blunt as it could be. And
y’all just said, “To heck with that. Let the judge say what he
wants. We’re going to do what we want.” That’s the way I
feel about it.

He went on:

So I’m caught in a dilemma. Do I get aggravated with the way
the case has been handled? And my first thought when I read
11

it this morning was I was going to continue everything to
Thursday morning and give you 24 hours to get her body up
here and have a hearing, and at the end of the hearing I’m
going to have a contempt hearing for complete defiance of my
orders and direct contempt of the court[.] But bottom line is,
I’m upset. It’s never been done to me. Never have I had that
done to me, and I am upset over it.

At that point, Alice Landry, an LDH attorney from Acadiana, interjected

her explanation as to the reasons behind Brossette’s handling of the

commitment. Judge Waddell considered Landry’s explanation, and

responded:

My problem is I told Mr. Brossette—and I’ve know[n] him for
years. I don’t like to get on any attorney. But I specifically
said I want this done, and you didn’t do it. And I said I want
this done, and you didn’t do it. And then you filed the motion
to dismiss so you wouldn’t have to do it. To me, that just was
a slap in the face for my direct order, not my indirect order.

****

When I was practicing law, if the judge said something, I may
not like it, I have the right to appeal and I have the right to ask
for a writ. But I don’t have the right just to ignore it or to do
what I want and that’s in essence what the department did here,
period—the department and/or Mr. Brossette, or Mr. Brossette
and/or the department—because the net effect is, it was.

After some discussion on the record between Judge Waddell, Landry, and

Sale, an agreement was reached that once M.M.’s mental condition was

stabilized, she would resume with the services from OCDD. Towards the

conclusion of the hearing, Judge Waddell revisited the issue of Brossette’s

alleged contempt, commenting:

I don’t have an axe to grind. I hope we all learned from it. But
I am—I realize I’m a dinosaur and I realize I’m on the tail-end
of my career, but I also believe in the dignity of the court. And
if the judge—and I know this is a far-fetched deal, but when I
was practicing law, if the judge told me to do cartwheels out
there, I physically couldn’t do it. But you bet your you-know-
what I would have tried to do the cartwheel in there. I just
wouldn’t have gone on by and done something else or moved.

12

And I feel slighted or offended. I think the dignity of this court
has been slighted by that. I really do. And I think it can be
corrected in the future, but that’s the way I feel.

Judge Waddell’s frustration was further apparent at the September 11

hearing when he explained to Brossette:

If you want to have a hearing on it, we will have a hearing on
it, but I don’t know what I’ll do after the hearing. Because I
was really upset when I read your first motion, and I was even
upset before we had our hearing. And I have cooled down a
little bit, but I still think it was a blatant disrespect for the order
of the Court.

Considering the record in this case, Judge Waddell erred in failing to

recuse himself. The basis of Brossette’s motion was not mere conclusory

allegations; in fact, this matter was the perfect storm for recusal (i.e.,

Brossette’s actions and omissions in light of Judge Waddell’s orders). As a

result, the record clearly indicates Judge Waddell’s impartiality on the

underlying issue. As stated herein, Judge Waddell made several statements

at the various hearings leaving no doubt his opinion regarding Brossette’s

actions culminating in a contempt charge against the lawyer. In the

commitment hearings leading up to the contempt hearing, Judge Waddell

informed all involved that he was “aggravated,” “upset,” “slighted,” and

“offended” as a result of Brossette’s actions. Judge Waddell’s reaction

shown by his statements on the record indicate not only an actual bias, but

an objective bias and interest in the outcome of the contempt charge. See,

Daurbigney v. Liberty Pers. Ins. Co., 2018-929 (La. App. 3 Cir. 5/9/19),

272 So. 3d 69.

Notably, Judge Waddell’s irritation in this matter was most probably

justified, and this opinion is not to say that Brossette was not in

constructive contempt of court. However, considering the palpable and

13

unmistaken aggravation and offense Judge Waddell felt regarding

Brossette’s actions, it was an abuse of discretion not to have recused

himself from personally considering those charges which he imposed. See,

In re Merritt, 391 So. 2d 440, 444 (La. 1980), where the La. Supreme

Court, citing Kidd, noted, “Considering not only the possibility of actual

bias on the part of the trial judge, but also the possibility of the appearance

of bias, it would be better for the appearance of justice for another judge to

try the instant charge of contempt.”

Since Kidd, and the revision of La. C.C.P. art. 151, two other circuits

have addressed the recusal of a judge when, specifically, a constructive

contempt charge was the underlying issue. In In re Eleanor Pierce Stevens

Living Trust, 229 So. 3d 36 (La. App. 3 Cir. 2017), a new trustee was suing

a prior trustee regarding the administration of a trust. The prior trustee

failed to comply with the trial court’s judgment, and the new trustee

requested the trial court hold him in contempt. There was a hearing on the

contempt issue. But before a judgment was rendered on the contempt, the

prior trustee filed a motion to recuse, alleging the trial court judge and the

new trustee’s attorney had had ex-parte email communications. The motion

to recuse claimed the trial court judge’s action revealed bias. The motion to

recuse was denied. In reviewing the failure to recuse, the Third Circuit

looked to art. 151 “which provides an exclusive list of mandatory grounds

for the recusal of a judge.” Ultimately and after consideration of the record,

the Third Circuit found the claim for recusal to be without merit and did not

recuse the trial judge. Id. at 48.

In State v. Gibson, 95-2297 (La. App. 4 Cir. 01/19/96), 668 So. 2d

449, a lawyer was charged with constructive contempt for making a
14

disparaging comment about a trial judge. The lawyer filed a motion to

recuse arguing that previously the trial judge had presupposed he was guilty

of contempt and would be incarcerated. Later, the trial court denied the

motion to recuse, and considered the constructive contempt charge—

finding the lawyer in constructive contempt. The lawyer appealed, and

argued the applicability of La. C. Cr. P. art 671 (the criminal code

counterpart to art. 151). The Fourth Circuit considered the pertinent

transcripts regarding the interaction between the trial judge and the lawyer

to see if there was a showing of any bias, prejudice or personal interest. In

fact, the Fourth Circuit looked at Kidd, and said “the factors” that led to

Kidd were not shown in the instant case. Id. at 451. Thus, considering the

record, it found the trial court had not erred in failing to recuse himself.

Finally, as a result of Judge Waddell’s error regarding his failure to

recuse, we pretermit review of the substance of the trial court’s judgment.

Were Brossette’s actions merely confusion in the process and inadvertent

mis-lawyering or intentional constructive contempt? That issue should not

have been considered by Judge Waddell and shall be considered by an

impartial judge at the trial court.

CONCLUSION

Considering the foregoing, we reverse the trial court’s judgment as it

pertains to the denial of Edward Brossette’s motion requesting an impartial

judge. The sentence and conviction on the charges of constructive

contempt are set aside, and the case is remanded for a new trial in

15

accordance with the provisions of La. C. Cr. P. art. 24 before a judge other

than Judge Robert Waddell.

JUDGMENT DENYING MOTION FOR IMPARTIAL JUDGE IS
REVERSED; SENTENCE ON CONSTRUCTIVE CONTEMPT SET
ASIDE; MATTER REMANDED FOR FURTHER PROCEEDINGS.

16

GARRETT, J., concurring.

I concur in the result. Under the unique circumstances presented

here, the constructive contempt proceedings initiated by Judge Waddell

should have been heard by another judge.

The matter comes before us in a rather unusual posture because the

only brief filed with this court was on behalf of Mr. Brossette. The record

on appeal consists of three volumes, which is unusually large for a judicial

commitment proceeding. Judge Stephens has provided a very cogent

explanation of the events leading up to the contempt adjudications. I would

merely add that it is clear from reviewing the lengthy record that Mr.

Brossette was not well-versed in commitment proceedings. It appears that

the instant case was the first one he had ever filed. At least three of the

many court proceedings held in this matter were conducted at Brentwood

Hospital, where M.M. was hospitalized. Presumably, this was done as an

accommodation to the hospital, so the patient would not have to be

transported to the courthouse. This accommodation requires that the judge

and court staff (bailiff, court reporter, and minute clerk) travel from the

courthouse to the facility to conduct court. Mr. Brossette’s lack of

knowledge of commitment procedures necessitated numerous trips to

Brentwood Hospital by the judge and court staff. Judge Waddell’s growing

frustration with Mr. Brossette’s actions is understandable under these

circumstances.

Judge Stephens’s opinion contains many of the comments made on

the record by the court during the protracted proceedings which reflect the

strong feelings and frustration on the judge’s part. After first finding Mr.

Brossette in direct contempt, the court then instituted the written Rule Nisi

for Contempt of Court, which ordered Mr. Brossette to show cause why he

should not be held in constructive contempt. The grounds in both contempt

matters appear to be the same. In response to the Rule, another attorney,

appearing on behalf of Mr. Brossette and the Louisiana Department of

Health, filed a lengthy brief and a “Motion for an Impartial Judge.” After

the motion was denied, the second contempt proceeding was summarily

considered and Judge Waddell adjudicated Mr. Brossette guilty of

constructive contempt.

Under prior jurisprudence in this state, recusal motions have

generally been regarded with disfavor, starting out with a strong

presumption in favor of the judge sought to be recused. The moving party,

under our past jurisprudence, would then have the heavy burden of proving

the judge sought to be recused had “actual bias” if the only ground for

recusal was bias under La. C. C. P. art. 151(A)(4). Daurbigney v. Liberty

Pers. Ins. Co., 2018-929 (La. App. 3 Cir. 5/9/19), 272 So. 3d 69. As noted

in Daurbigney, this required subjective proof of actual bias. Under current

jurisprudence from the United State Supreme Court, the Louisiana Supreme

Court, and various appellate courts of this state, there is a due process

analysis that should be considered in recusal matters and it appears that an

objective test is now employed. The objective standard articulated by

Louisiana courts in recent decisions provides:

Recusal is required when, objectively speaking, the probability
of actual bias on the part of the judge or decisionmaker is too
high to be constitutionally tolerable.

See e.g. State v. LaCaze, 2016-0234 (La. 3/13/18), 239 So. 3d 807, cert.

denied, 139 S. Ct. 321, 202 L. Ed. 2d 218 (2018); State v. Daigle, 2018-

0634 (La. 4/30/18), 241 So. 3d 999; Daurbigney v. Liberty Pers. Ins. Co.,
2

supra, Menard v. Menard, 2019-580 (La. App. 3 Cir. 3/11/20), 297 So. 3d

82; citing Rippo v. Baker, ___ U.S. ___, 137 S. Ct. 905, 197 L. Ed. 2d 167

(2017). Applying this standard, on this record, objectively speaking, the

probability of actual bias is too high to be constitutionally tolerable.

I do not believe that it is necessary for us to imply that Judge

Waddell was actually biased and not impartial, as suggested by Judge

Stephens’s opinion. In my view, this case presents one of those rare

situations contemplated by our Louisiana Supreme Court in the Kidd case,

where the contempt proceedings should be considered by another judge for

the appearance of justice due to the strong feelings expressed on the record.

Further, this record objectively shows that the probability of actual bias on

the part of the judge or decisionmaker is too high to be constitutionally

tolerable. The case sub judice is clearly the type of situation envisioned by

both Kidd and the newer cases cited above which articulate the objective

due process test.

I agree that the case needs to be remanded for a new hearing before

another judge and, therefore, I concur in the result.

3