Case 6:04-cv-01101-RTH-MEM Document 798-3 Filed 07/28/2008 Page 1 of 8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

IN RE: BAYOU SORREL CLASS ACTION CIVIL ACTION NO. 6:04CV1101

JUDGE RICHARD T. HAIK, SR.

MEMORANDUM IN SUPPORT OF MOTION TO RECUSE

MAY IT PLEASE THE COURT:

A. LAW and ARGUMENT

The statute concerning disqualification of a judge provides that a judge "shall recuse

himself in any proceeding in which his impartiality might reasonably be questioned." 28

U.S.C. § 455 (a). The statute further delineates specific circumstances requiring recusal

such as personal bias or prejudice, financial interest, or where a family member is involved

in the controversy:

a. any justice, judge or magistrate judge of the United States shall disqualify

himself in any proceeding in which partiality might reasonably be

questioned.

b. He shall also disqualify himself in the following circumstances:

******

(1) Where he has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding.

(Emphasis added).

Mr. LeMaire submits that, because of the facts detailed and set forth herein below

and in his Affidavit, Judge Haik bias, prejudice, and impartiality is seriously drawn into

question.

The test when considering a recusal motion is whether a reasonable person aware

of all the circumstances would have doubts concerning the impartiality of the particular

judge. United States v. Martorano, 866 F.2d 62, 67 (3d Cir.1989); Potashnick v. Port City

Construction Co., 609 F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78
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(1980). The test for disqualification is “whether the conduct would create in reasonable

minds, with knowledge of all the relevant circumstances that a reasonable inquiry would

disclose, a perception that the judge's ability to carry out judicial responsibilities with

integrity, impartiality and competence is impaired.” Code of Conduct for United States

Judges, Cannon 2(A) Commentary.

Because 28 U.S.C. § 455 (a) focuses on the appearance of impartiality, as opposed

to the existence in fact of any bias or prejudice, a judge faced with a potential ground for

disqualification ought to consider how his participation in a given case looks to the average

person on the street. Use of the word “might” in the statute was intended to indicate that

disqualification should follow if the reasonable man, were he to know all the circumstances,

would harbor doubts about the judge's impartiality. Potashnick, supra, at 1111.

The Fifth Circuit advises that § 455 (a) “requires” a judge to recuse if the judge has

“any question” about the appropriateness of remaining on the case. The statute “clearly

mandates that it would be preferable for a judge to err on the side of caution and disqualify

himself in a questionable case.” Potashnick, 609 F.2d at 1112.

The United States Supreme Court significantly notes that “people who have not

served on the bench are often all too willing to indulge suspicions and doubts concerning

the integrity of judges”, and that “the very purpose of § 455(a) is to promote confidence in

the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg

v. Health Services Acquisition Corp., 486 U.S. 847, 864-865, 108 S.Ct. 2194, 2205 (1988).

In Liljeberg, the Court noted that disqualification “does not depend upon whether or

not the judge actually knew of facts creating an appearance of impropriety, so long as the

public might reasonably believe that he or she knew.” 108 S.Ct. at 2202. The Court

reasoned as follows:

The goal of section 455 (a) is to avoid even the appearance of partiality. If
it would appear to a reasonable person that a judge has knowledge of facts
that would give him an interest in the litigation then an appearance of
partiality is created even though no actual partiality exists because the

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judge does not recall the facts, because the judge actually has no interest in
the case or because the judge is pure in heart and incorruptible.... Under
section 455 (a), therefore, recusal is required even when a judge lacks actual
knowledge of the facts indicating his interest or bias in the case if a
reasonable person, knowing all the circumstances, would expect that the
judge would have actual knowledge.’ Id. Emphasis added.

Thus, if a judge "concludes that 'his impartiality might reasonably be questioned,'

then he should also find that the statute has been violated.' Id. Also see In re Faulkner,

856 F.2d 716 (5th Cir.1988).

There are substantial facts that would cause a reasonable person on the street to

doubt the impartiality of Judge Haik in this matter.

B. Recusal Appropriate

Mr. LeMaire provides the following as grounds that support his position that Judge

Haik impartiality may reasonably be called into question.

1. Disciplinary Complaints Involving Conduct of Ms. Dougherty and Mr.

Fayard

On or about April 18, 2007, Kevin LeMaire submitted an ethical conduct complaint

(“the complaint”) to the Louisiana Office of Disciplinary Counsel against Ms. Elizabeth C.

Dougherty (“Dougherty”). See Exhibit 1, Affidavit of Kevin LeMaire.

Ms. Dougherty is a former law clerk for Judge Haik, and was appointed by Judge

Haik to the PSC and Class Counsel in the instant matter. Without providing details that Mr.

LeMaire believes should have been kept confidential, at issue in the complaint against Ms.

Dougherty are, among other things, actions and conduct involving Ms. Dougherty and

Calvin C. Fayard, Jr., and where Judge Haik is named as a critical fact witness.1 Even

though she had long ago withdrawn as counsel in this matter,2 Ms. Dougherty waived the

1
A similar ethical conduct complaint was filed by Mr.
LeMaire against Mr. Fayard on October 30, 2007. Judge Haik is
also named as a witness in some parts of that complaint.
2
See, Exhibit 2, Order permitting Elizabeth C. Dougherty
to withdraw as counsel of record in the proceeding.

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confidentiality of the disciplinary proceeding, and submitted a copy of the complaint directly

to the Court via the Special Master.

Attached as Exhibit 3 is Invoice No. 16671 from Special Master [683] for the time

period of May to August 2007. There the Court will find, at page 2, an entry for May 9,

2007 which reads, as follows:

REVIEW EMAIL FROM TUPPY DOUGHERTY REGARDING

DISCIPLINARY COMPLAINT FILED BY KEVIN LEMAIRE

Followed by a thirty minute telephone conference with Judge Haik.

At page 6, an entry for July 11, 2007, which provides:

REVIEW CORRESPONDENCE FROM TUPPY DOUGHERTY REGARDING

DISCIPLINARY COMPLAINT FILED BY KEVIN LEMAIRE AND

FORWARDING DOCUMENTS CONCERNING SAME.

Correspondence was sent by Ms. Dougherty to the Special Master on July 11, 2007,

according to Exhibit 3 concerning the disciplinary complaint and possibly the complaint

itself. At the time, Ms. Dougherty was working at the ODC and should not have been

working on any outside cases. Along with that email correspondence from Ms. Dougherty

to the Special Master concerning the disciplinary complaint, Ms. Dougherty obviously sent

the Special Master a copy of the complaint against her. Considering the billing activity in

this matter, and as stated in his affidavit attached hereto, it is Mr. LeMaire’s reasonable

belief that Judge Haik became aware of the contents of the submission Ms. Dougherty

made to the Special Master. See Exhibit 1.

Attached as Exhibit 4 is Invoice No. 17260 from Special Master Juneau [761-3]

which reflects his billing to this litigation for the time period of November through December

2007. The last 3 time entries on this invoice are particularly relevant to this matter, and

provide as follows:

REVIEW OF CORRESPONDENCE FROM HOMER ED BAROUSSE

REGARDING SERVICES RENDERED TO TUPPY DOUGHERTY AND

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FORWARDING INVOICE CONCERNING SAME

TELEPHONE CONFERENCE WITH DANNY CLAVIER REGARDING

STATEMENT RECEIVED FROM HOMER ED BAROUSSE CONCERNING
SERVICES RENDERED TO ELIZABETH DOUGHERTY

EMAIL TO DANNY CLAVIER FORWARDING APPROVAL OF PAYMENT

ON INVOICE FROM HOMER BAROUSSE

Mr. Homer Ed Barousse is Ms. Dougherty's personal ethics counsel before the ODC

and he does not represent any class member or settling defendant in this matter.

Thus, the approval of payment must have sought and then granted by Judge Haik

after discussion and review of the billing as it is unlikely the Special Master would have

taken unilateral action on the legal bill where the protocol established for release of funds

requires this Court's approval. The protocol for disbursement of funds from the settlement

were not set up to pay legal defense fees for attorneys before the Court who find

themselves responding to disciplinary complaints. Ms. Dougherty is the Court's former law

clerk, and she reached out to the Court for financial assistance with payment of legal fees

on a separate administrative action and obtained such. Judge Haik did not personally pay

the legal fees out of his own pocket; however, he apparently authorized the payment from

a fund under his supervision.

That this Court approved payment of the legal fees may seriously draw into question

whether such demonstrates a personal bias in favor of Ms. Dougherty and partiality or bias

concerning Mr. LeMaire, who instituted the complaint, may reasonably be drawn into

question. The Court must certainly be aware that Ms. Dougherty was discharged from her

employment by and with the ODC and that she is assisting with the present action taken

by MLF and the PSC against Mr. LeMaire in this Court. That Ms. Dougherty has lost her

job may also form a basis

Where no fund exists to pay such and yet this Court approved such payment, there

is evidence that Ms. Dougherty and Mr. Fayard will receive favorable treatment and the

Court will be biased against Mr. LeMaire, whose complaint caused the legal fees and

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whose present action in state court is causing MLF to exert legal fees.

As shown on Exhibit 4, the offer of settlement to Mr. Irving was accepted on May

25, 2007.

As detailed in Exhibit 1, on May 26, 2007, Mr. LeMaire was informed that Judge

Haik was aware of and displeased with an ethical conduct complaint against a member of

the PSC, and suggested that such complaints may need to be resolved prior to approval

of payment of fees to Mr. Irving fees who was not involved with that complaint. Mr. Irving

had made a complaint to the Fifth Circuit regarding Judge Haik and such had been

resolved; thus, the only complaint pending at that time was that against Ms. Dougherty. It

was almost 3 months later before the Court approved Mr. Irving’s fees. It is averred that,

based upon this prior conduct, Judge Haik is biased against Kevin LeMaire for filing the

complaint against Ms. Dougherty and Mr. Fayard, which name Judge Haik as a witness.

The above description of the payment of Ms. Dougherty's legal fees for a separate

administrative action from class funds constitutes extra-judicial conduct, as there is no

order in the record nor motion filed by Ms. Dougherty to have her legal fees incurred for

defending an ethical complaint approved for payment by the Court from the class

settlement funds. Such strongly suggests that Judge Haik has sided with Ms. Dougherty

against Mr. LeMaire to extent that her legal fees have been approved for payment from a

fund supervised by the Court.

Ms. Dougherty, the former law clerk of Judge Haik, will be called as a witness by

Kevin LeMaire in these proceedings as she has been carbon copied on the MLK matter,

because she is obviously involved in prosecuting the present matter against Mr. LeMaire.

The truthfulness of Ms Dougherty’s testimony is crucial to these proceedings, and Judge

Haik can not now sit in judgment of her credibility.

Even though she is no longer counsel of record to these proceedings, Ms.

Dougherty has been inextricably involved with the instant proceedings initiated by

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McKernan and the PSC, as evidenced by correspondence copied and blind copied to her

by counsel for McKernan and the PSC.

2. McKernan and the PSC Filed Pleadings Designed to Inflame Judge Haik

In their Motion seeking an order for Kevin LeMaire to show cause why his state court

employment contract suit did not fall within the jurisdiction of this Court, MLF made it

abundantly clear to the Court that Mr. LeMaire had provided an affidavit to an attorney who

previously filed a motion to recuse Judge Haik. The purpose and intent of pointing this out

served no legitimate purpose and was designed to inflame Judge Haik and to prejudice

Kevin LeMaire.

CONCLUSION

The statute concerning disqualification of a judge provides that a judge "shall recuse

himself in any proceeding in which his impartiality might reasonably be questioned." 28

U.S.C. § 455 (a).

Respectfully submitted:

s/Donna Grodner
Donna Unkel Grodner (20840)

Grodner & Associates

2223 Quail Run, B-1
Baton Rouge, Louisiana 70808
(225) 769-1919 fax 769-1997
dgrodner@grodnerlaw.com

CERTIFICATE

A copy of the foregoing was filed electronically with the Clerk of Court using the
CM/ECF system. Notice of this filing will be sent to counsel named below by operation of
the court’s electronic filing system. I also certify that I have mailed by United States Postal
Service this filing to the parties marked non-CM/ECF participants:

s/Donna Grodner
Donna U. Grodner (20840)
GRODNER & ASSOCIATES
2223 Quail Run, B-1
Baton Rouge, Louisiana 70808
(225) 769-1919 FAX 769-1997
Email: dgrodner@grodnerlaw.com

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