text:
    IN RE: Joseph G. PASTOREK, II
    NO. 2017-B-1473
    Supreme Court of Louisiana.
    January 30, 2018
    OFFICE OF DISCIPLINARY COUNSEL, Charles Bennett Plattsmier ; For Applicant.
    Dane S. Ciolino ; Joseph George Pastorek, II ; For Respondent.
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Joseph G. Pastorek, II, an attorney licensed to practice law in Louisiana, but currently on interim suspension based upon his conviction of a serious crime. In re: Pastorek , 12-0041 (La. 2/1/12), 80 So.3d 1151.

BAR ADMISSIONS PROCEEDING

Before we address the current charges, we find it helpful to provide some background information concerning respondent's admission to the bar.

Respondent graduated from medical school in 1977. After completing his internship and residency in obstetrics and gynecology, he obtained board certification in general obstetrics and gynecology as well as maternal-fetal medicine (a sub-specialty of obstetrics which deals with complications of high-risk pregnancies).

In 2001, respondent returned to school, graduating from law school in December 2004. He passed the July 2005 Louisiana bar examination. However, the Committee on Bar Admissions opposed his admission to the bar, citing administrative proceedings which were then pending against him before the Louisiana State Board of Medical Examiners ("Medical Board"). These proceedings involved allegations that respondent had violated the Louisiana Medical Malpractice Act by, among other things, engaging in improper consultation practices. After respondent and the Medical Board entered into a consent judgment resolving the administrative complaint in its entirety, the Committee on Bar Admissions withdrew its objection to respondent's admission. On December 15, 2006, this court rendered a per curiam opinion granting respondent's application for admission to the bar. In re: Pastorek , 05-2336 (La. 12/15/06), 944 So.2d 564. Respondent took the oath of admission on January 9, 2007.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

From 2004 to 2007, respondent worked as a prescribing physician for Global Pain Management, LLC ("Global"), a pain clinic with offices located in the greater New Orleans area. Global also operated a clinic in Pensacola, Florida. While employed at Global, respondent's prescription practices came under investigation by federal authorities. The government characterized the Global clinics as "pill mills" and claimed that respondent was purporting to provide "pain management" treatment for chronic pain patients, when in truth and in fact he was unlawfully distributing Schedule II, III, and IV controlled substances through prescription practices done outside the usual course of medical practice and for other than legitimate medical purposes.

In September 2010, respondent was indicted by a federal grand jury in the Northern District of Florida, Pensacola Division, on charges that he and his co-defendants conspired to unlawfully distribute prescription painkillers. According to the indictment, respondent wrote prescriptions to patients for drugs including oxycodone, methadone, Xanax, and hydrocodone in exchange for cash fees for office visits. Over a four-year period between 2004 and 2008, respondent and another physician saw 40-80 patients each day; in total, Global collected over $8.5 million in cash proceeds from patients during that time period. The indictment further alleged that one or more deaths had resulted from these prescription practices, specifically the use of methadone ; however, the government ultimately could not establish this allegation.

A six-week jury trial was conducted beginning in October 2011. During the trial, the government's expert in the field of pain management, addiction medicine, and the prescription of controlled substances testified that after reviewing 96 patient files that were seized by the government, he concluded that Global's prescription practices were dangerous, not consistent with the usual course of medical practice, and not for legitimate medical purposes. On the other hand, respondent's expert in pain management reviewed the same 96 patient files and concluded that the pain medications were prescribed to patients for legitimate medical reasons and were done so within the accepted standard of care of the practice of pain medicine.

At the conclusion of the trial, respondent was found guilty of conspiracy to dispense Schedule IV controlled substances. Respondent filed a motion for new trial, which was denied by the district court.

Prior to respondent's sentencing, the United States Probation Office prepared a presentence investigation report ("PSR"). In relevant part, the PSR indicated that, according to the government, there were no statutorily defined "victims of the offenses" of respondent's conviction because the government could not establish that respondent's conduct resulted in the deaths of any patients. This portion of the PSR was adopted by the district court, and no order of restitution was imposed upon respondent. The district court also determined that there were no vulnerable victims in this case. In January 2013, respondent was sentenced to serve one year and one day in federal prison, followed by one year of supervised release. Respondent served his incarceration and successfully completed the obligations of his supervised release as of January 14, 2015.

On September 1, 2015, the United States Eleventh Circuit Court of Appeals affirmed respondent's conviction. United States v. Pastorek , 625 Fed.Appx. 464 (11th Cir. 2015) (not designated for publication). On April 18, 2016, the United States Supreme Court denied respondent's petition for writ of certiorari; his conviction became final upon the Supreme Court's denial of rehearing on June 13, 2016.

Meanwhile, as a result of respondent's prescription practices, he had once again become the subject of an inquiry by the Medical Board. Addressing the cases of sixteen Global patients whom respondent failed to adequately or appropriately examine before prescribing controlled substances, the Medical Board found in its report that respondent had shown "an egregious disregard of both the letter and the spirit of the" Pain Management Rules, 46 La. Admin. C., Part 45. In November 2007, respondent was fined $5,000 and his license to practice medicine in Louisiana was suspended for three years, effective immediately. Notably, respondent was prohibited from practicing pain medicine for the remainder of his career.

DISCIPLINARY PROCEEDINGS

In February 2012, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent answered the formal charges and admitted that he was convicted of a felony; however, he requested that the disciplinary matter be stayed pending the appeal of his criminal conviction. The disciplinary board granted the motion to stay.

Following the finality of respondent's criminal conviction, the stay of the proceedings was lifted and this matter proceeded to a formal hearing, which was conducted by the hearing committee in September 2016. Prior to the hearing, the ODC filed a pre-hearing memorandum in which it argued that respondent should be permanently disbarred. In his pre-hearing memorandum, respondent argued that the appropriate sanction in this matter is a three-year suspension or disbarment, retroactive to the date of his interim suspension.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:

Respondent was licensed to practice medicine in 1977. He attended law school from 2001 to 2004, and was licensed to practice law in 2007. His legal practice consisted of research, writing, and consulting on a contract basis while he continued his medical practice. From April 2004 to December 2007, respondent was employed in Louisiana as a prescribing physician by Global, a pain clinic owned by a non-physician. As described by respondent and the Medical Board, Global may readily be characterized as a "pill mill."

In 2007, respondent (and others associated with Global) were indicted in federal court in Florida for alleged violations of federal law at Global's Louisiana clinics at which respondent was employed. Respondent was ultimately found guilty of Count One of the indictment, knowingly and willfully conspiring with others to dispense controlled substances in violation of federal law, specifically 21 U.S.C. § 841(a)(1). Count One further stated the offense involved a mixture containing methadone (a Schedule II drug) and other substances, resulting in one or more deaths, in violation of federal law, specifically 21 U.S.C. § 841(b)(1)(C), providing specific penalties where methadone is involved in a violation of 21 U.S.C. § 841(a)(1).

Respondent's activities as a physician at Global also resulted in the three-year suspension of his medical license by the Medical Board and a permanent prohibition on his practice of pain medicine. The Medical Board reviewed the records of sixteen of respondent's patients, finding clear violations of the Louisiana Pain Management Rules as well as principles of good medicine, unprofessional conduct, failing to satisfy prevailing and usually accepted standards of medical care, prescribing controlled substances without legitimate medical justification, and egregious disregard of the letter and spirit of the Pain Rules.

The coroner's report on the death of E.A., one of respondent's patients, found her death to be accidental, due to the serial causes: myocardial hypoxia due to pulmonary atelectasis due to recent drug intake, and methadone was found in her system. Respondent testified that "we," i.e., the pain clinic, prescribed the methadone, but that the level found postmortem was within the therapeutic range. Based on the coroner's finding that methadone was a factor in E.A.'s death, the committee found respondent's prescription of methadone or failure to oversee the prescription of methadone subjected E.A. to an increased risk of death.

Based on these findings, and as respondent acknowledged, the committee found violations of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct, as charged in the formal charges.

The committee determined that respondent violated duties owed to the public. The patients who visited Global were especially vulnerable, whether they were seeking medical help or improperly seeking controlled substances without medical justification. While respondent argues the federal court found Global's patients to be drug addicts in a symbiotic relationship with Global, the committee stated it would not "blame the victims." As found by the Medical Board, respondent acted knowingly, in reckless disregard of the Pain Management Rules, in prescribing controlled substances in inappropriate circumstances. While the evidence is not sufficient to determine that respondent's misconduct directly resulted in a patient's death, at a minimum it increased that risk and resulted in multiple failures to receive proper medical treatment (even if that treatment would have been denial of drugs). The applicable baseline sanction is disbarment.

The committee found no mitigating factors. While respondent has only been licensed to practice law since 2007, his misconduct arose directly out of his practice of medicine, in which he has been engaged since 1977. The committee rejected respondent's argument that his criminal conduct only related to his medical practice and not to his legal practice, noting that numerous cases find violations of the Rules of Professional Conduct unrelated to the practice of law.

The committee then turned to a consideration of the permanent disbarment guidelines. Guideline 5 specifies that permanent disbarment may be warranted for a felony conviction involving substantial damage to a person. While not precisely on point with the threat to person created by respondent's reckless prescription of controlled substances, the committee found the clearly increased risk of such substantial harm-and even death-to multiple patients is within the ambit of gravity illustrated by the guidelines.

Accordingly, the committee recommended respondent be permanently disbarred.

In his brief to the disciplinary board, respondent argued that the sanction recommended by the hearing committee is too harsh, and that the appropriate sanction in this matter is a three-year suspension or disbarment, retroactive to the date of his interim suspension.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. Respondent was convicted of a felony which conclusively establishes his guilt. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent violated duties owed to the public and the legal profession. Respondent knowingly and willfully engaged in a criminal conspiracy to improperly dispense controlled substances. Respondent's failure to properly examine, diagnose, and evaluate his patients for appropriate treatment or screen them for substance abuse and/or diversion caused them both actual and potential harm, and also harmed the public. Relative to the magnitude of the harm, the federal sentencing judge characterized the harm inflicted by respondent and others associated with Global as "serious bodily harm."

The Opinion and Ruling of the Medical Board detailed the deficiencies in treatment of sixteen of respondent's patients. These findings indicate that respondent prescribed controlled substances to those with histories of drug abuse, in instances where there was nothing in the patient's record to justify narcotic therapy, and to a patient who was overmedicated. Relative to one patient with obvious indications that she was obtaining drugs from multiple sources, respondent continued to prescribe opiates and made no effort to wean the patient off controlled substances, even though she had indicated a desire to do so.

Harm was sustained not only by respondent's own patients, but also those to whom his patients diverted the narcotics. The fact that the drugs being prescribed by respondent were controlled substances protected by federal law is evidence enough that actual harm results when those substances reach the wrong hands.

In addition to the harm sustained by respondent's patients and the public, respondent caused harm to the legal profession. The public expects lawyers to abide by the law. Whenever a member of the bar engages in criminal conduct, it tarnishes the reputation of the membership of the bar as a whole. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is disbarment.

In aggravation, the board found a dishonest and selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, and illegal conduct. The board agreed with the hearing committee that no mitigating factors are present. While it may be true that respondent has no prior disciplinary record and is relatively inexperienced in the practice of law, these factors bear no weight concerning the attending circumstances and misconduct. The pattern of misconduct forming the basis of this matter commenced prior to respondent's admission as a lawyer and was unrelated to any experience or lack thereof in the practice of law. While it is also true that respondent has been subjected to other penalties or sanctions in the form of a felony conviction resulting in his serving actual time in prison, as well as the suspension of his medical license, the committee apparently found that these circumstances did not justify a reduction in the degree of discipline. The committee considered respondent's testimony relative to remorse and a cooperative attitude toward the proceedings and apparently found the testimony insufficient to establish these mitigating factors. The board declined to disturb these findings.

Considering the conduct at issue, the board adopted the committee's recommendation of permanent disbarment. The board agreed with the committee that Guideline 5 of the permanent disbarment guidelines may not be precisely on point, inasmuch as the evidence was not sufficient to establish that respondent's misconduct directly resulted in a patient's death, but nevertheless significant harm was established through the federal court decisions and the Medical Board's opinion, as previously discussed. Moreover, the board found that proof of direct and actual harm to a specific individual is not necessarily contemplated in Guideline 5. See In re: Meece , 08-2980 (La. 4/13/09), 6 So.3d 751, and In re: Stephens , 07-0180 (La. 4/27/07), 955 So.2d 140 (both lawyers permanently disbarred for committing the crime of armed bank robbery; no evidence in either case to suggest that actual physical harm befell any of the individual victims of the crimes). Alternatively, if it is determined that Guideline 5 does not apply, the permanent disbarment guidelines are merely illustrative, and respondent's conduct is so egregious as to warrant that sanction even though the conduct does not definitively fit any of the specific guidelines. In support, the board cited In re: Richard , 14-1684 (La. 10/3/14), 148 So.3d 923. In that case, a search incident to a traffic stop revealed approximately 200 Xanax tablets in the lawyer's vehicle. He was charged with possession with intent to distribute Schedule IV narcotics, but was later allowed to plead guilty to a misdemeanor paraphernalia charge. Finding the lawyer had conspired to sell controlled dangerous substances to an undercover narcotics officer, the court permanently disbarred the lawyer even though the conduct did not fit any of the specific permanent disbarment guidelines. The board concluded:

Schedule IV narcotics are protected specifically because of their potential to cause harm to those who use them. Respondent used his medical license to prescribe drugs to patients as part of a "pill mill," disregarding the needs of his patients, as well as enabling drug seekers in diverting drugs. He did so knowingly and willfully. This conduct, which spanned a period of three to four years, endangered the well-being of multiple patients and members of the public. His callous and selfish conduct is no less egregious than that of the [respondents] in Meece , Stephens , and Richard ...

Based on this reasoning, the board recommended respondent be permanently disbarred.

Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5 (B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent's crimes warrant discipline, and if so, the extent thereof.

Supreme Court Rule XIX, § 19(E); In re: Boudreau , 02-0007 (La. 4/12/02), 815 So.2d 76 ; Louisiana State Bar Ass'n v. Wilkinson , 562 So.2d 902 (La. 1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Perez , 550 So.2d 188 (La. 1989).

Here, respondent was convicted by a jury of conspiracy to dispense Schedule IV controlled substances. He committed this crime while he was employed as a prescribing physician for a pain clinic, described in the record as a "pill mill." This misconduct amounts to a violation of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct, as acknowledged by the parties and as found by the hearing committee and the disciplinary board.

We agree with the assessment of the board that respondent knowingly violated duties owed to the public and the legal profession. His actions resulted in harm to his patients, the public, and the legal profession. The applicable baseline sanction in this matter is disbarment.

For the reasons articulated in its report, the board correctly found that the aggravating factors present in this case are a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, and illegal conduct. As to mitigating factors, the committee and the board should have noted and assigned appropriate weight to the following factors which are objectively applicable on the face of the record: the absence of prior discipline, inexperience in the practice of law, and the imposition of other penalties or sanctions. However, having considered these factors, we find that their weight is not sufficient to cause us to deviate downward from the baseline sanction of disbarment.

The committee and the board concluded that respondent's offenses are so egregious that he should be permanently disbarred. In support, reference is made to Guideline 5, although it is acknowledged by all concerned that it is not precisely on point with the facts of this case.

Guideline 5 provides that permanent disbarment may be warranted for instances of conviction of a felony involving physical coercion or substantial damage to person or property, including but not limited to armed robbery, arson, or kidnapping. A plausible argument can be made that this guideline applies to respondent's conviction of conspiracy to dispense Schedule IV controlled substances, given the substantial risk of bodily harm and death to which his patients and the public were exposed as a result of his dangerous prescription practices. Nevertheless, even if we were to agree with respondent and find that Guideline 5 is inapplicable, it is abundantly clear that the permanent disbarment guidelines are merely illustrative and are not intended to bind our decision-making process. In re: Minor , 12-1006 (La. 10/16/12), 100 So.3d 319. Regardless of the fact that respondent's misconduct may not definitively fit any of the specific permanent disbarment guidelines, his conduct demonstrates a clear lack of moral fitness. Particularly when viewed in the light of his bar admission proceeding, it is fair to say that respondent's behavior continues to place the public at risk and to tarnish the image of the legal profession. In order to protect the public and maintain the high standards of the legal profession in this state, we conclude that respondent should not be allowed the opportunity to return to the practice of law in the future.

Based on this reasoning, we find permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board's recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Joseph G. Pastorek, II, Louisiana Bar Roll number 30845, be and he hereby is permanently disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Hughes, J., dissents and would order disbarment.

Crichton, J., dissents and would order disbarment.

      Patients normally were required to pay $200 in cash per bi-weekly visit, or $400 monthly. No insurance claims or medical coverage payments were accepted.

      Respondent was paid an hourly salary in connection with his employment at Global.

      In an attempt to show that respondent's prescription practices played a role in the death of one of his patients, the ODC introduced into evidence at the hearing on the formal charges a coroner's report showing that his patient, E.A., died as a result of her use of methadone prescribed by respondent. At the criminal trial, evidence of the cause of E.A.'s death had been excluded due to the government's inability to offer testimony by the toxicologist who produced the toxicology report.

      In addition to the conspiracy charge relating to the distribution of painkillers, respondent's co-defendants were also charged with and found guilty of conspiracy to commit money laundering.

      Respondent faced 36 months in federal prison under the federal sentencing guidelines, but the district judge departed below the guideline range. She took into account respondent's "extraordinary family issues," including his responsibilities to his mentally disabled adult son and to his wife, who suffers from cancer ; respondent's age; his previously reputable medical career; the loss of his medical license and the loss of his career; his lack of prior experience in pain management and the absence of law enforcement contact; and the fact that respondent was not the "ring leader" in the case.

      According to the online records of the Medical Board, respondent's medical license remains suspended as of the date of this opinion.

      As summarized in the opinion of the United States Eleventh Circuit Court of Appeals, the defendants, including respondent,
      ignored evidence that their patients were abusing the prescribed substances: they did not order routine and inexpensive drug screens to ensure that the patients were complying with the prescriptions, they refilled prescriptions early without questioning, they did not administer physical exams to ensure an underlying pathology, and they wrote blanket prescriptions based upon previous doctors' scripts.

      The federal judge stated:
      ... [I]t was four years, ... dozens of patients, serious bodily harm ... by licensed medical doctors who had notice that the patients were drug seekers and that some of the patients were diverting drugs. And ... with some of the patients, these red flags, if you will, were ignored, and they were treated, as the jury has found, without legitimate medical justification, ...

      For example, when asked during the hearing if he was remorseful, respondent's first words were, "Well I am extremely sorry what we were doing turned out to be something illegal." At no point during his response to the question did he indicate remorse for putting patients and the public in harm's way. Although he later testified that he accepted that the doctors at the clinic "did the wrong thing," he failed to demonstrate remorse for anything other than the adverse consequences he suffered as a result of his misconduct ("I am very sorry for [my misconduct] because I really valued the practice of medicine..."). Later, respondent acknowledged that, theoretically, ignoring pain protocols could harm patients, but testified, "I don't feel like that applies to us specifically or me specifically..." Lastly, respondent testified that he entered a not guilty plea "because I thought we were doing the right thing, at least I was, and that I could justify that, and apparently, the jury didn't agree."


source: Caselaw Access Project

author: WEIMER, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Rogers LACAZE
    NO. 2016-KP-0234
    Supreme Court of Louisiana.
    March 13, 2018
    ON REMAND FROM THE UNITED STATES SUPREME COURT
   WEIMER, Justice.

This matter is currently before the court in light of the remand by the United States Supreme Court in LaCaze v. Louisiana , --- U.S. ----, 138 S.Ct. 60, 199 L.Ed.2d 1 (2017), which vacated the decision in State v. LaCaze , 16-0234 (La. 12/16/16), 208 So.3d 856, in which the defendant's writ application related to his petition for post-conviction relief was denied, and the defendant's conviction was upheld. On remand, this court was instructed to consider whether the trial judge's recusal should have been required because "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable' " under the circumstances. After carefully considering all the facts, we find the defendant has not shown that the circumstances created an unconstitutionally high risk of bias, and the original denial of the defendant's recusal claim in LaCaze , 16-0234, 208 So.3d 856, is correct.

FACTS AND PROCEDURAL HISTORY

On March 4, 1995, Rogers LaCaze (Defendant) and Antoinette Frank (Frank), then an officer of the New Orleans Police Department (NOPD), dined together at Kim Anh Vietnamese restaurant in New Orleans East just before closing time. They returned shortly after closing in Frank's police unit, apparently to commit armed robbery despite the presence of off-duty NOPD Officer Ronnie Williams. Officer Williams and two restaurant employees (siblings Ha and Cuong Vu) were fatally shot during the ensuing encounter.

Defendant and Frank were indicted for the triple murders and were separately tried-both before Judge Frank Marullo. Defendant's trial was held first. In closing argument at Defendant's trial, the state conceded that no survivors had witnessed the shootings and that "we will never know [precisely] what happened" to the Vu siblings in the kitchen, but nevertheless maintained the evidence showed that Defendant shot Officer Williams as Frank gathered the others in the kitchen area. State v. LaCaze , 99-0584, p. 10 (La. 1/25/02), 824 So.2d 1063, 1071. The state also conceded that it appeared that just one gun, a 9 mm pistol, was used to kill all three victims, but asserted it was immaterial which perpetrator had pulled the trigger because the evidence showed that both were present and exhibited specific intent to kill. Id. , 99-0584 at 10, 824 So.2d at 1071-72.

A jury found Defendant guilty of three counts of first degree murder and unanimously sentenced him to death. His conviction and sentence were affirmed by this court in LaCaze , 99-0584, 824 So.2d 1063, and Defendant's writ of certiorari was denied in LaCaze v. Louisiana , 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002).

Post conviction, Defendant learned that, in the course of investigating the murders, NOPD discovered that Frank obtained two guns from the NOPD property and evidence room, one of which (a 9 mm pistol) was the same type used in the triple murders for which Defendant was convicted. Both guns were released to Frank by Officer David Talley. Before Defendant's trial, the NOPD Public Integrity Bureau (Bureau) commenced an investigation into whether Talley had violated departmental rules and regulations in releasing the guns. The non-9 mm gun was released to Frank pursuant to an order purportedly signed by Judge Morris Reed; however, when shown the order by Bureau investigators, Judge Reed denied that the signature on the order was his, observing that his name was misspelled ("Reid").

Bureau investigators also inquired into whether the 9 mm gun was released pursuant to a legitimate order signed by Judge Frank Marullo, i.e ., whether Judge Marullo's signature on the release was genuine. Notably, Frank falsely reported the 9 mm gun stolen 10 days before the murders. In late 1998, roughly three years after Defendant and Frank's trials, a 9 mm gun with partial serial numbers, suggesting that it may have been the murder weapon, was found in possession of Frank's brother, Adam Frank.

Judge Marullo cooperated with the Bureau's internal investigation of Officer Talley before Defendant's case was assigned to his docket. When initially interviewing Judge Marullo, Bureau investigator Sergeant Robert Harrison presented the release order purportedly bearing Judge Marullo's signature, at which point Judge Marullo "viewed the document, and compared it to several other documents with his signature," before stating that "he did not believe the court order in question was his signature." Judge Marullo explained to Sgt. Harrison that "[s]ince the court order did not have a description of the weapon to be released, he would not have signed [it]." From this exchange, Sgt. Harrison opined that the signature had been forged. To support his opinion, Sgt. Harrison again contacted Judge Marullo to secure a recorded statement. Because Defendant's case had been assigned to Judge Marullo, the judge "would not make a statement ... until the case ha[d] reached its final disposition." As a result, the Bureau investigation of Officer Talley remained open through the duration of Defendant's trial and Frank's trial for the purpose of obtaining a statement from Judge Marullo.

Judge Marullo did not disclose to the parties in Defendant's case his awareness of the Bureau's internal investigation of Officer Talley or the fact that he had been questioned by Bureau investigators about the release of the guns, even after Defendant filed (early during the course of his trial) a motion to recuse Judge Marullo on other grounds. The information that there was an investigation surfaced during co-defendant Frank's subsequent trial in connection with Officer Talley's testimony about the release of guns from the property room to Frank. When Frank's counsel raised the possibility that Judge Marullo's signature on the order authorizing the gun's release was a forgery, Judge Marullo recessed and held a recorded conference, during which Judge Marullo disclosed that there was a Bureau investigation into the circumstances of the gun's release, including as to the genuineness of his signature. Specifically, Judge Marullo stated that he did not recall signing the order, but that it would have been "perfectly logical and correct that [he] would [have done] something like that." Judge Marullo stated that he had provided samples of his signature to a handwriting expert for comparison and "they came back and told me that it wasn't my signature." Judge Marullo also opined that it appeared there had been "some kind of system in that property room where they were forging names to get guns out of there."

After the trials of both Defendant and Frank, Sgt. Harrison contacted Judge Marullo again, at which time the judge declined to comment because the cases "would be with him for a long time because of appeals."

In response to the Bureau inquiry, Officer Talley acknowledged that he helped Frank obtain a 9 mm gun from the NOPD property room months before the murders; that he had spoken with Frank inside the NOPD gun vault days before the murders about the release of additional weapons, which would have afforded Frank the opportunity to remove another weapon from the vault without his knowledge when he left her alone in the property room; and that he had once before helped Frank obtain another gun from the property room. As to the 9 mm gun at issue, Officer Talley explained to Bureau investigators that he "brought a court order to Judge Marullo" to facilitate its release, and "Judge Marullo's clerk took ... it to the Judge's chambers" and "returned with the order signed by [the] Judge."

When Defendant learned that Judge Marullo had been questioned during the Bureau's investigation of Officer Talley, Defendant filed a pro-se application for post-conviction relief, followed by a counseled supplement in May 2010. Defendant alleged that he was denied the right to a fair and impartial tribunal in the trial of his capital case in violation of his federal constitutional rights.

Because this issue was raised by Defendant, Judge Marullo was recused from presiding over the post-conviction proceedings. Thereafter, a judge from a different jurisdiction was appointed to preside over Defendant's request for post-conviction relief. In June 2013, the trial court held an evidentiary hearing at which over 20 witnesses, including Officer Talley and Judge Marullo, testified. Officer Talley again conceded having helped Frank get the 9 mm gun, but maintained he did not forge Judge Marullo's signature. Judge Marullo testified that he recalled being questioned by Bureau investigators, but denied ever signing an order to release the gun, calling it a "phony" signature. Judge Marullo testified that he did not recall his statement at the in-chambers conference during Frank's trial in which he indicated he had provided someone with handwriting samples. Finally, Judge Marullo denied that these events caused him to harbor any bias.

On July 23, 2015, the trial court issued a 128-page judgment with reasons in connection with Defendant's petition for post-conviction relief. The trial court rejected Defendant's claim regarding Judge Marullo, observing that this case involves "a classic example of circumstances and appearances creating an inference unsupported by facts," however, it vacated Defendant's conviction and sentence on the basis of a structural defect-a juror was seated after failing to disclose his law enforcement experience. Accordingly, Defendant's request for a new trial was granted. The state filed a writ application with the appellate court, asserting that the trial court abused its discretion in making findings related to the qualifications of a juror, errors the state urged were compounded when the trial court incorrectly applied the law. In an opposition, Defendant urged that the trial court correctly found a structural defect in the seating of the juror in question. He further argued that the other claims before the trial court also had merit. Those claims included one that Defendant "was tried before a biased tribunal."

In a one-page action, Defendant's conviction was reinstated, see State v. LaCaze , 15-0891 (La.App. 4 Cir. 1/6/16) (unpub'd), on a finding the juror's seating was not a structural defect. Additionally, no error was found in the trial court's rejection of Defendant's remaining claims, including his due process claim based on the appearance of bias resulting from Judge Marullo presiding over the trial. This court subsequently denied writs, issuing an opinion finding that the court of appeal correctly reversed the trial court's order for a new trial and reinstated the conviction. State v. LaCaze , 16-0234 at 1, 208 So.3d at 858. Pertinent here is this court's review of Defendant's due process claim concerning Judge Marullo, which was based on: (1) the allegation that "NOPD Investigated Judge Marullo as the Source of the 9mm Beretta Murder Weapon During the Pendency of these Proceedings" and (2) "Judge Marullo's Involvement in the [Bureau] Investigation Mandated His Recusal." In analyzing Defendant's claim, this court noted the presumption of impartiality in favor of a trial judge. LaCaze , 16-0234 at 10, 208 So.3d at 864. After recognizing that a judge in a criminal case shall be recused under La. C.Cr.P. art. 671(A)(1) if he is "biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial" and under La. C.Cr.P. art. 671(A)(6) if he "[w]ould be unable, for any other reason, to conduct a fair and impartial trial," this court observed that Article 671"underscores a judge's duty to avoid even the appearance of impropriety." LaCaze , 16-0234 at 10, 208 So.3d at 864.

This court further found that Judge Marullo's possible connection to the release of a gun to Frank is insufficient to show that Judge Marullo "harbored any bias, prejudice, or personal interest in the case, let alone to such an extent that it rendered him unable to conduct a fair trial." Id. After finding lack of proof of actual bias, this court further found that evidence related to Judge Marullo being questioned in the Bureau's internal investigation of Officer Talley was insufficient to show that Judge Marullo would be unable to conduct a fair trial for some other reason. See LaCaze , 16-0234 at 10-11, 208 So.3d at 864 (citing La. C.Cr.P. art. 671(A)(6), quoted infra ). Defendant's argument that Judge Marullo's initial participation in the internal investigation of Officer Talley caused him to become entangled in the facts at issue in Defendant's case was rejected by this court. The means by which the murder weapon was procured, i.e ., whether Frank had obtained it pursuant to a genuine or "bogus" court order, did not pertain to any of the issues at Defendant's trial. See LaCaze , 16-0234 at 11, 208 So.3d at 864. Furthermore, this court held that Judge Marullo's possible involvement in the administrative release of a gun did not "have a tendency to make the existence of any fact of consequence [ ] more or less probable," and was thus insufficient to rebut the presumption of impartiality afforded to judges. See id.

Subsequently, the United States Supreme Court in Rippo v. Baker , --- U.S. ----, 137 S.Ct. 905, 197 L.Ed.2d 167 (2017), clarified the standard for judicial disqualification in criminal cases under the federal due process clause. Based on this clarification, the Supreme Court granted Defendant's petition for writ of certiorari, vacated this court's decision in LaCaze , 208 So.3d 856, and remanded the matter to this court for further consideration of this issue. LaCaze v. Louisiana , --- U.S. ----, 138 S.Ct. 60, 199 L.Ed.2d 1 (2017).

DISCUSSION

The Due Process Clause of the United States Constitution requires "a fair trial in a fair tribunal," before a judge with no bias or interest in the outcome. Bracy v. Gramley , 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (quoting Withrow v. Larkin , 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). Louisiana courts have generally required criminal defendants to present evidence of actual bias to obtain relief based on a judge's failure to recuse. The Supreme Court's intervention in Rippo , and again in this case, however, directs that recusal may be required even where proof of actual bias is lacking.

In remanding for reconsideration here, the Supreme Court referenced its recent decision in Rippo , in which it clarified the judicial disqualification standard in the context of the federal constitutional right to due process. See Rippo , 137 S.Ct. at 907. During his trial, the defendant in Rippo received information indicating that the presiding judge was a target of a federal bribery probe. Id. at 906. From this, the defendant surmised that the same district attorney's office that was prosecuting him was also investigating the judge. The defendant unsuccessfully moved for the trial judge's recusal under the theory that the judge could not remain impartial in a matter in which one of the parties before him was actively investigating him for criminal wrongdoing. Id.

Having failed to make his case on direct review, the defendant in Rippo revisited the issue post-conviction, this time offering records from the trial judge's subsequent criminal prosecution that established the same district attorney's office that prosecuted the defendant had, as he suspected, been concurrently investigating the trial judge. Id. The state courts in Rippo again rejected the defendant's claim, denying the defendant the opportunity for "discovery or an evidentiary hearing [on the recusal issue] because his allegations '[d]id not support the assertion that the trial judge was actually biased in [the defendant's] case.' " Id. , at 906-07 (quoting Rippo v. State , --- Nev. ----, 368 P.3d 729, 744 (2016) ).

From the denial of his request for post-conviction relief by the state courts, the defendant filed a petition for writ of certiorari. In evaluating the state court judgment in Rippo , the Supreme Court held that evidence of actual bias is not necessary to require recusal. See id. , 137 S.Ct. at 907 (citing Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ). The Court clarified that the inquiry for judicial disqualification is instead whether, "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable' " under the circumstances. Id. (quoting Withrow , 421 U.S. at 47, 95 S.Ct. 1456 ); see Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 889-90, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). In applying this standard, the court must determine "whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Rippo , 137 S.Ct. at 907 (quoting Williams v. Pennsylvania , --- U.S. ----, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) ). Accordingly, the state supreme court's decision in Rippo , which affirmed the trial court's rejection of the defendant's recusal claim based on lack of proof of actual bias, was vacated, and the case was remanded to the state supreme court for further consideration of Defendant's federal due process claim under the clarified standard. Id. Notably, the Supreme Court in Rippo did not find that the defendant was entitled to substantive relief, but instead simply clarified the federal standard to be applied by the state supreme court on remand. On remand, the state supreme "court is free to determine whether its original decision is still correct in light of the [clarified standard] or whether a different result is more appropriate." See Kenemore v. Roy , 690 F.3d 639, 642 (5th Cir. 2012), cert. denied, 568 U.S. 1106, 133 S.Ct. 889, 184 L.Ed.2d 691 (2013).

In light of the Supreme Court's remand, this court, like the state supreme court in Rippo , is now called on to decide whether the original decision in LaCaze , 16-0234, 208 So.3d 856, is correct in light of the clarified standard. As a basis for his federal due process claim, Defendant relies on the following facts:

• NOPD conducted an internal investigation into Officer Talley's release to Frank, then an NOPD officer, of two guns from the property room, one of which, a 9 mm released in August 1994, could have been used in the March 1995 murders.
• Bureau investigators found that Officer Talley's release of the 9 mm gun had involved the use of a release order purportedly signed by Judge Marullo, which Officer Talley maintained was authentic.
• When asked to review the order, Judge Marullo told the Bureau investigator that he did not believe the signature was authentic.
• Defendant's case was allotted to Judge Marullo's courtroom, after which he declined, when asked, to make further statements to the investigator while the case remained open.
• Judge Marullo did not disclose to the parties his statement to the Bureau investigator or his knowledge of the investigation itself.

Defendant maintains these circumstances are precisely the sort of extreme circumstances that give rise to a federal due process violation, creating an unconstitutional appearance of impropriety or bias. In support of his argument, Defendant relies substantially on Liljeberg v. Health Services Acquisition Corp. , 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), which involved a trial judge's failure to provide a full disclosure of relevant facts in violation of a federal statute requiring disqualification of a federal judge if "he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." Id. at 858-59, 108 S.Ct. 2194 (quoting 28 U.S.C. § 455(b) ).

Citing Liljeberg , Defendant states that nondisclosure is a "fact[ ] that might reasonably cause an objective observer to question [a judge's] impartiality." See id. at 865, 108 S.Ct. 2194. For this reason, Defendant urges that, under Liljeberg , federal due process requires that the judge make full disclosure of known facts that might be relevant to an appearance of bias to completely remove any basis for questioning the judge's impartiality. See id. at 866, 108 S.Ct. 2194. According to Defendant, the absence of full disclosure gives rise to an unconstitutional potential for bias.

Notably, La. Code of Judicial Conduct, Canon 2 requires that: "A Judge ... Avoid Impropriety and the Appearance of Impropriety in All Activities," and La. C.Cr.P. art. 671, which lists the grounds for recusal, requires recusal if a judge is a witness in the cause and underscores the duty to avoid even the appearance of impropriety. See State v. LeBlanc , 367 So.2d 335, 341 (La. 1979) ("[T]he appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by the recusal of the trial judge."

Even if Defendant has identified a potential violation of state law or the judicial canons in Judge Marullo's failure to disclose, such a violation is alone insufficient to warrant a new trial in this case. Similarly, as indicated in Caperton , circumstances that run afoul of state law or judicial canons do not necessarily violate federal due process, which is the issue currently before this court. Nonetheless, state law or judicial canon considerations may be relevant to the determination of whether Judge Marullo is subject to disqualification under the Rippo standard.

A judicial disqualification under the Due Process Clause first requires that an objective "probability of actual bias" be established. Thus, the state correctly notes that proof of an appearance of bias alone is insufficient to show a violation of federal due process. The Rippo standard clearly requires proof that an appearance of bias gives rise to a "probability of actual bias," also referred to as a "risk of bias" or "potential for bias." See Rippo , 137 S.Ct. at 907. Secondly, the defendant must prove that the probability of actual bias rises to a level that "is too high to be constitutionally tolerable" under the circumstances. See id.

Defendant suggests (relying on Tumey v. State of Ohio , 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749 (1927), in which the judge had a direct, substantial pecuniary interest in the outcome of the defendant's case) that even a small probability of bias on the part of the person who is supposed to be the neutral adjudicator, here Judge Marullo, offends due process. Such a test is inconsistent with the wording of the Rippo standard and would render the "too high to be constitutionally tolerable" portion of the standard extraneous. Under the standard, proof of any probability of bias alone is insufficient. Notably, the jurisprudence does not indicate that proof of nondisclosure of information giving rise to any probability of bias automatically renders the probability of bias "too high to be constitutionally tolerable."

The jurisprudence reveals that an unconstitutional probability of bias exists when:

• The judge has a direct, substantial pecuniary interest in the outcome of the defendant's case,
• the judge's election campaign received exceptionally large financial donations from one of the parties,
• the sentencing judge formerly worked as a prosecutor in another case against the defendant and the judge had earlier "communication, correspondence, and cooperation as a prosecutor" with the prosecutor in the other case against the defendant,
• the judge "presiding at the contempt hearing had also served as the 'one-man grand jury' out of which the contempt charges arose,"
• the judge has made a critical decision (approved of seeking the death penalty) while a former prosecutor in the pending prosecution,
• the appellate judge presided over the trial of the matter, • the judge has taken bribes from other criminal defendants, • the judge has both executive and judicial responsibility in the matter, and
• the judge was a defendant in prior litigation involving one of the parties.

None of these risks is present in the instant case. Judge Marullo did not have a pecuniary interest in Defendant's case. He had no prosecutorial involvement with the Defendant or in this matter. He did not have an unacceptable relationship with Defendant or the prosecutors. He had no reason to fear criminal prosecution in connection with the release of the gun to Frank.

Judge Marullo's communication and initial cooperation in the Bureau investigation into how the 9 mm gun was released was not adversarial or accusatory toward Defendant. Significantly, and most importantly, it was Officer Talley, not Judge Marullo, who was the subject of the Bureau's investigation. Contrary to any prior representations to the courts, there is absolutely no evidence in the record that Judge Marullo was under investigation himself for any of these events. Even if Judge Marullo, in fact, signed the order that authorized release of the 9 mm gun to Frank, Judge Marullo did nothing wrong; he was merely performing a ministerial act that he was fully authorized to perform.

The defense's theory at trial was that Defendant did not participate in the homicide, but believed that Frank had planned and committed the murders with her brother, Adam Frank, after obtaining a 9 mm gun from the police property room. In support of this theory, Defendant testified that Frank told Defendant that she expected to get a weapon from the property room. According to Defendant, state law requires Judge Marullo's recusal since he could have been called as a witness at Defendant's trial to corroborate the Defendant's testimony that Frank procured a 9 mm gun from a friend in the NOPD property room to commit the crime. However, Judge Marullo did not have personal knowledge or direct evidence of the actions of Officer Talley or Frank. Judge Marullo is not alleged to have had any direct contact with Officer Talley or Frank in connection with the release of the 9 mm gun. Judge Marullo only knows what he was told by the Bureau investigator and what was visible from the face of the order, which he believes was forged. There is no indication that Judge Marullo heard of Officer Talley's account of the gun release until Officer Talley later appeared and testified at Frank's trial. If, in fact, Judge Marullo did not sign the order, he has no direct knowledge of the release of the 9 mm gun and would not be in a position to corroborate Defendant's testimony. Even if Judge Marullo had personal knowledge of information that might be corroborative, such information is neutral in the sense that it does not aid either party. If at all helpful, it would be more corroborative of the state's "evidence that his accomplice obtained the same type of gun that was used to kill the victims, in a case in which the state presented evidence that he and Frank had been acting in concert under the guise of her authority and, together, premeditated the murders and were equally culpable." LaCaze , 16-0234 at 12, 208 So.3d at 865 (footnote omitted).

Although it is possible that the 9 mm gun released from the property room to Frank pursuant to the order purportedly signed by Judge Marullo was used in the murders at the Kim Anh restaurant, that fact has never been definitively established. The fact that Frank got a 9 mm gun from the property room does not exculpate Defendant, especially in light of the abundant evidence of his guilt. That Frank might have once possessed the 9 mm gun that was used to kill Officer Williams and the Vu siblings does not overcome the evidence that showed Defendant was the one who possessed the murder weapon when Officer Williams was shot. See LaCaze , 99-0584 at 2-4, 824 So.2d at 1066-67. Furthermore, contrary to Defendant's suggestion, the facts do not indicate that Judge Marullo was trying to conceal the information in question from Defendant during Defendant's trial or that Judge Marullo thought this information would harm or help Defendant's defense. Moreover, nothing in the record shows that these unusual circumstances caused Judge Marullo to favor one party.

Defendant places significance on the Supreme Court's decision in Rippo , suggesting that the Court found that the trial judge's involvement in an investigation conducted by the prosecuting entity gives rise to an unconstitutional potential for bias. However, the Supreme Court in Rippo did not address the merits of the defendant's due process claim, nor by its ruling did it insinuate that the state court's ultimate ruling on the merits of the defendant's due process claim was incorrect. Furthermore, there is nothing in the Supreme Court's remand in LaCaze that indicates the Court's belief that the circumstances in Rippo and LaCaze are sufficiently analogous such that the resolution of the judicial disqualification issue would be the same.

We reject Defendant's claims that "the probability of actual bias" is higher in this case than in Rippo . Since Defendant's case does not involve an investigation of the presiding judge by the district attorney's office, the investigation in this case does not involve a possible self-interest that could be considered pecuniary for the judge. The fact that the presiding trial judge in Rippo disclosed his impermissible conflict during the course of trial does not lessen the probability of bias created by the underlying investigation and related charges in Rippo .

While at first blush the fact that Judge Marullo had information about what was potentially the murder weapon might cause an average observer to question him sitting in a capital trial, the circumstances of this case, when carefully examined, do not meet the standard set by the United States Supreme Court in Rippo .

Before the allotment of Defendant's case, Judge Marullo was questioned during an internal investigation by the NOPD of one of its officers about the authenticity of the signature that appeared on the court order that authorized the release of a 9 mm gun that may have been used in the murders of Officer Williams and the Vu siblings. Once Defendant's case was assigned to Judge Marullo, he appropriately declined any further comment until the case was resolved. Considering the psychological tendencies of the average judge, as we are required to do, we do not find that the pre-allotment questioning of Judge Marullo and his failure to disclose knowledge of such investigation are the sort of rare and extreme circumstances that would cause the average judge to favor one party so as to be objectively suggestive of bias or a "probability of actual bias." Perhaps the average judge in Judge Marullo's position would have harbored some sensitivity about whether his signature was forged. Realistically, the average judge would be vigilant to avoid being unjustly associated with any wrongdoing surrounding the release of the possible murder weapon to Frank. Although the average judge in this position may harbor these sensitivities, it does not follow that the average judge would reasonably harbor any bias for or against Defendant because of these sensitivities.

While we do not find proof of a probability of actual bias has been made by Defendant, we also do not find under the circumstances of this case that the defendant's claims have been proven to be "too high to be constitutionally tolerable. See Federal Trade Commission v. Cement Institute , 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) ("[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level."). The association between the potential source of bias in this case and what might reasonably be expected to be a judge's anticipated psychological reaction are far too remote and attenuated to show a "probability of actual bias on the part of [Judge Marullo] ...[that] is too high to be constitutionally tolerable." Even granting that the inquiry into the authenticity of Judge Marullo's signature was technically related to Defendant's case and may, therefore, have prompted an average judge to disclose this information, Defendant fails to show that Judge Marullo's disputed role in the administrative release of a 9 mm gun was objectively (and realistically) likely to cause bias for or against either party in this case. The controversy at issue in this case markedly differs from the circumstances in those cases which the Supreme Court has found offered "a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true." See Caperton , 556 U.S. at 885, 129 S.Ct. 2252 (quoting Tumey , 273 U.S. at 532, 47 S.Ct. 437 ). In contrast, it is unclear under the circumstances how the Bureau's internal investigation into the means by which Officer Talley had a 9 mm gun released to Frank or the controversy as to whether Judge Marullo's signature was genuine could significantly and irrevocably color Judge Marullo's perspective such that he would not be in a position "to hold the balance [between Defendant and the prosecution] nice, clear, and true." See id.

DECREE

For the foregoing reasons, we find that the court of appeal correctly reversed the trial court's order for a new trial and properly reinstated Defendant's conviction. Defendant's request for substantive relief is denied.

WRIT DENIED.

      See Rippo v. Baker , --- U.S. ----, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017).

      Frank knew the owners of the restaurant as she had previously worked security for them at the restaurant.

      State v. LaCaze , 16-0234, pp. 1-3 (La. 12/16/16), 208 So.3d 856, 858-59.

      Officer Talley was then in charge of the NOPD property and evidence room gun vault.

      Sgt. Harrison's report and subsequent testimony at the hearing before the Civil Service Commission convened to evaluate Officer Talley's role in the release of the guns indicated that other witnesses, but not Judge Marullo, had supplied handwriting samples.

      As to the admissibility of related testimony at Frank's trial, Judge Marullo ruled that the prosecutor in Frank's case could only elicit testimony to show that Officer Talley provided a 9 mm gun to Frank before the murders, but not as to how Officer Talley had obtained the gun.

      In seeking review, the state did not ask to have the death sentences reinstated.

      See, e.g., State In Interest of M.J. , 14-0622, p. 26 (La.App. 4 Cir. 2/4/15), 160 So.3d 1040, 1055, writ denied, 15-0487 (La. 1/15/16), 184 So.3d 704 (rejecting recusal argument because juvenile defendant pointed to nothing "that would support a finding of actual bias or prejudice"); State v. Doleman , 02-0957, p. 10 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, 858, writ denied, 02-3101 (La. 9/19/03), 853 So.2d 633 (finding no evidence of actual bias); State v. Taylor , 07-93, p. 11 (La.App. 5 Cir. 11/27/07), 973 So.2d 83, 92, writ denied, 07-2454 (La. 5/9/08), 980 So.2d 688 (finding no evidence of actual bias).

      See also Flowers v. Mississippi , --- U.S. ----, 136 S.Ct. 2157, 2157-58, 195 L.Ed.2d 817 (2016) (Alito, Thomas, JJ., dissenting); Diaz v. Stephens , 731 F.3d 370, 378 (5th Cir. 2013), cert. denied, 570 U.S. 946, 134 S.Ct. 48, 186 L.Ed.2d 960 (2013).

      Louisiana C.Cr.P. art. 671(A) provides:
      In a criminal case a judge of any court, trial or appellate, shall be recused when he:
      (1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
      (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
      (3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter's employment in the cause;
      (4) Is a witness in the cause;
      (5) Has performed a judicial act in the case in another court; or
      (6) Would be unable, for any other reason, to conduct a fair and impartial trial.

      See Caperton , 556 U.S. at 889-90, 129 S.Ct. 2252 (states may "adopt recusal standards more rigorous than due process requires;" federal "Due Process Clause demarks only the outer boundaries of judicial disqualifications," and leaves it to the legislature and the states to "impose more rigorous standards" for judicial disqualification); Bracy , 520 U.S. at 904, 117 S.Ct. 1793 (distinguishing the "constitutional floor" from the ceiling set "by common law, statute, or the professional standards of the bench and bar"). See, e.g., People v. Freeman , 47 Cal.4th 993, 103 Cal.Rptr.3d 723, 222 P.3d 177, 178 (2010) (applying Caperton and finding an appearance of impropriety, as proscribed under California law, is not enough to warrant judicial disqualification under the federal standard: "while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist ... 'the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.' ").

      "The Supreme Court has never rested the vaunted principle of due process on something as subjective and transitory as appearance." Del Vecchio v. Illinois Dept. of Corrections , 31 F.3d 1363, 1371-72 (7th Cir. 1994), cert. denied, 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1994). Liljeberg , which involved the application of a federal statute in the disqualification determination, neither holds nor suggests that "an appearance of bias on the part of a federal judge, without more, violates the Due Process Clause." Johnson v. Carroll , 369 F.3d 253, 262 (3rd Cir. 2004), cert. denied, 544 U.S. 924, 125 S.Ct. 1639, 161 L.Ed.2d 483 (2005).

      "[I]n the absence of any possibility of actual bias-that is, based solely on how the situation might have 'appeared' to an outside observer ... [t]he Supreme Court has never held, or even intimated, that the due process clause requires recusal." Suh v. Pierce , 630 F.3d 685, 692 (7th Cir. 2011).

      See Tumey , 273 U.S. at 523, 535, 47 S.Ct. 437 ; Aetna Life Insurance Co. , 475 U.S. at 822, 824, 106 S.Ct. 1580 (the judge was involved as a party in a separate, but similar, lawsuit).

      See Caperton , 556 U.S. at 884, 129 S.Ct. 2252.

      See Smith v. State , 357 S.W.3d 322, 345 (Tenn. 2011), cert. denied, 568 U.S. 828, 133 S.Ct. 104, 184 L.Ed.2d 48 (2012).

      See In re Murchison , 349 U.S. 133, 134, 138-39, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

      See Williams , 136 S.Ct. at 1905 (applied the Caperton standard for judicial disqualification and found that no person can serve "as both accuser and adjudicator in a case.").

      See People v. Novak , 30 N.Y.3d 222, 66 N.Y.S.3d 147, 88 N.E.3d 305, 307 (2017).

      See Bracy , 520 U.S. at 900-01, 909, 117 S.Ct. 1793 (the judge's subsequent conviction for accepting bribes from defendants in criminal cases was sufficient proof to afford discovery on his claim of actual judicial bias in his case-judge had an interest in the defendant's conviction).

      See Ward v. Village of Monroeville, Ohio , 409 U.S. 57, 61-62, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (where the mayor before whom petitioner was compelled to stand trial for traffic offenses was responsible for village finances, and mayor's court through fines, forfeitures, costs and fees, provided a substantial portion of the village funds, petitioner was denied a trial before a disinterested and impartial judicial officer as guaranteed by the due process clause).

      See Johnson v. Mississippi , 403 U.S. 212, 215-16, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971).

      As indicated, a 9 mm gun with a partial serial number that matched the one released from the property and evidence room to Frank was found in the possession of Frank's brother (Adam) three years after Defendant and Frank were convicted. That gun could have been used in the murders of Officer Williams and the Vu siblings and thereafter been handed off to Frank's brother Adam.

      The trial judge, who was sitting ad hoc to preside over the post-conviction hearing, weighed the evidence and rejected Defendant's theory of innocence, noting the weakness of his evidence: "the state presented evidence that [Defendant] accompanied Frank to Walmart to shop for 9 mm ammunition within hours of the murders; that survivors (who saw [Defendant] with Frank twice earlier that same evening) positively identified [Defendant] as the male perpetrator who rummaged through their property after the gunfire ceased; that [Defendant's] initial statements contained details only the perpetrators could have known; that [Defendant's] trial testimony admitted his presence in the restaurant earlier that night, contradicting his alibi in which he claimed he was at the pool hall; and that [Defendant] was observed within an hour of the murders using Ofc. Williams's stolen credit card to purchase gas at a Chevron station near his brother's apartment." LaCaze , 16-0234 at 17, 208 So.3d at 868. The differences in their appearance made it nearly impossible, even under the circumstances, for the survivors to have confused Defendant, who "was 18 years old, 5′3″ in height, and had gold teeth," and Adam Frank, who "was 24 years of age and 6′5″ in height." Id. "The survivors identified Frank's accomplice as a black male with gold teeth across the top, less than 20 years of age, and just over five feet tall." Id.

      After the Vus had locked up, Frank and Defendant, a man she previously introduced as her nephew, returned to the restaurant for their third time. See LaCaze , 99-0584 at 3, 824 So.2d at 1066. There were six workers still in the restaurant-four Vu siblings, a waitress, and Officer Williams. Id. 99-0584 at 2, 824 So.2d at 1066. The two surviving Vu siblings testified that they were with Frank near the kitchen area when they heard gunshots in the bar area in the front of the restaurant where Officer Williams was located, after which "Frank spun around and ran towards the bar and the front of the restaurant." See id. 99-0584 at 3, 824 So.2d at 1067. Defendant and Frank were then seen in the kitchen area "running around, rummaging, 'digging in this little area where [the Vus hid their] money.' " Id. 99-0584 at 4, 824 So.2d at 1067. Shortly after, gunshots were heard from the stove area where the other two Vu siblings were shot. Id.

      Rippo 's remand was premised not on the lower court having reached an incorrect result, but simply on its having failed to "ask the question our precedents require." See Rippo , 137 S.Ct. at 907.

      As previously stated, the appointed judged noted (after extensive proceedings during the post-conviction hearing, in which he heard testimony from Judge Marullo) "[t]his is a classic example of circumstances and appearances creating an inference unsupported by facts."

      The fact that NOPD investigated the triple murders and also questioned Judge Marullo in its internal investigation of Officer Talley is not significant in the determination of the probability of actual bias.

      The Rippo -Caperton standard involves consideration of whether "under a realistic appraisal of psychological tendencies and human weakness," the circumstances "pose [ ] such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Caperton , 556 U.S. at 883-84, 129 S.Ct. 2252 (2009) (quoting Withrow , 421 U.S. at 47, 95 S.Ct. 1456 ).

      The federal constitutional standard for judicial disqualification is implicated only in "rare instances." See Caperton , 556 U.S. at 890, 129 S.Ct. 2252 ; see also Bracy , 520 U.S. at 904, 117 S.Ct. 1793.


author: PER CURIAM

text:
    STATE of Louisiana IN the INTEREST OF R.M.
    No. 2017-CK-0281
    Supreme Court of Louisiana.
    March 13, 2018
   PER CURIAM

On November 13, 2015, the state filed a petition alleging that R.M. committed the felony-grade delinquent act of possession with intent to distribute a counterfeit controlled dangerous substance, La.R.S. 14:971.1, when R.M. was 15 years old. On November 23, 2015, R.M. appeared to answer the petition and entered a denial of the allegations. Pursuant to La.Ch.C. art. 877(B), the state had 90 days to commence the adjudication, i.e. until February 21, 2016.

On December 4, 2015, R.M. filed a motion to challenge competency. On December 8, 2015, the juvenile court appointed a panel of doctors to evaluate R.M. The court stayed the proceedings pursuant to La.Ch.C. art. 832 and set a competency hearing for January 27, 2016. The court, on its own motion, reset the hearing date several times after R.M. was arrested on a new charge and to give the doctors additional time to evaluate R.M. The court ultimately held the competency hearing on March 17, 2016, and found R.M. competent to proceed based on the doctors' recommendations.

The juvenile court set the adjudication for April 14, 2016, but continued the hearing until May 4, 2016 because the police officers involved in the case were not served. On May 4, 2016, the parties appeared for the adjudication, and the state made an oral motion to continue because the officers still had not been subpoenaed. In response, R.M. made an oral motion to dismiss the delinquency petition. The trial court granted R.M.'s motion, finding that the competency determination had resulted in unreasonable delay not attributable to any fault of the juvenile.

The state sought supervisory review from the court of appeal, which affirmed the juvenile court's dismissal in a split decision. State in the Interest of R.M. , 16-0616 (La. App. 4 Cir. 1/11/17), 208 So.3d 966. The majority found that the 90-day time limit to commence the adjudication was extended by the juvenile court once for good cause shown, and thereafter the state did not request or receive an extension. Therefore, the majority found that the time limit in La.Ch.C. art. 877 was exceeded and the juvenile court did not err by granting R.M.'s motion to dismiss. The majority also found, citing State in the Interest of F.M. , 12-1442 (La. App. 4 Cir. 6/5/13), 118 So.3d 1232, writ denied , 13-1623 (La. 2/14/14), 132 So.3d 401, that the state was not relieved of its obligation to seek an extension for good cause under La.Ch.C. art. 877(D) although the proceedings were stayed pursuant to La.Ch.C. art. 832.

Judge Ledet dissented, finding that State in the Interest of F.M. is distinguishable because, unlike R.M., F.M.'s competency was not called into question until after the time limit to commence the delinquency adjudication expired. Judge Ledet noted that La.Ch.C. art. 832"mandate[s] that no further action be taken in a delinquency proceeding until after the juvenile is found to have the mental capacity to proceed, which shall be determined by the court after a contradictory hearing." State in the interest of R.M. , 16-0606, p. 2, 208 So.3d at 970 (Ledet, J., dissenting). Judge Ledet found that the time to commence the delinquency adjudication here had not expired because:

R.M. filed a motion to challenge competency fifteen days after he answered the petition. On March 17, 2016, after several continuances on the district court's own motions, the contradictory hearing to determine competency was held. R.M. was found competent to proceed. Given that Article 832 specifically mandates the suspension of proceedings until a determination of competency has been made, I would find that the time limit to commence prosecution did not expire.

State in the interest of R.M. , 16-0606, p. 2, 208 So.3d at 970-971 (Ledet, J., dissenting) (citations omitted). We agree with Judge Ledet's analysis.

In State of Louisiana in the Interest of J.M. , 13-2573, p. 5 (La. 12/9/14), 156 So.3d 1161, this court emphasized the mandatory nature of the time limits established in La.Ch.C. art. 877 and, absent a showing of good cause by the state, the 90-day period cannot be suspended or interrupted. Moreover, this court stated that "it is incumbent upon the state to make a showing of good cause and obtain an extension before the period has run." State in the Interest of R.D.C., Jr. , 93-1865 (La. 2/28/94), 632 So.2d 745, 749 (emphasis in original).

The juvenile argues in essence that the state was still obligated to seek an extension for good cause, pursuant to La.Ch.C. art. 877(D), although R.M.'s competency was placed at issue and the proceedings were stayed pursuant to La.Ch.C. art. 832. The court of appeal agreed and found "that the stay pursuant to article 832 did not relieve the State of its duty to request and obtain a good cause extension before the article 877 mandatory time limit expired."

State in the interest of R.M. , 16-0616, p. 4, 208 So.3d at 969. This view conflicts with the plain language of Article 832, however, which states (emphasis added), "When the question of the child's mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding ... until ... the child is found to have the mental capacity to proceed." To resolve any tension between La.Ch.C. arts. 877 and 832, the court of appeal cited State in the interest of F.M. for the proposition that a stay "cannot serve as a substitute for requesting and obtaining an extension for good cause." State in the interest of R.M. , 16-0616, p. 4, 208 So.3d at 969 (quoting State in the interest of F.M. , 12-1442, p. 4, 118 So.3d at 1234 ). When that quote is viewed in its context, however, it is clear that State in the Interest of F.M. did not address the situation presented here (as correctly noted by Judge Ledet in her dissent):

Significantly absent in the record, is evidence that the State requested and received a good cause extension before the time limit ran. See State in the interest of R.D.C., Jr., supra. Although a stay was ordered and presumably in place at the time of the dismissal, it cannot serve as a substitute for requesting and obtaining an extension for good cause. Thus, we cannot find that the trial court abused its broad discretion in dismissing the case for failure to timely prosecute.

State in the interest of F.M. , 12-1442, p. 4, 118 So.3d at 1234 (footnote omitted) (emphasis added).

In State in the Interest of R.D.C., Jr. , 632 So.2d 745, 748 (La. 1994), this court found that "it is incumbent on the state to make a showing of good cause and obtain an extension before the period [established in La.Ch.C. art. 877 ] has run." Thus, "[i]n the event that a good cause extension is not granted and the period runs out, the state may not refile its petition." Id. In the present case, the time had not run when the state was prohibited from taking any further action other than that specified by La.Ch.C. art. 832. The delay occasioned by the necessity of determining R.M.'s competency is not attributable to the state, and that delay, which is a direct consequence of La.Ch.C. art. 832 and grounded in the basic requirements of due process and fairness, is beyond the state's control. Thus, we find that the time afforded to the state to commence the adjudication was suspended during the time in which R.M.'s competency was in question. Cf. State in the Interest of A.C. , 17-0182, p. 4 (La. 6/29/17), 225 So.3d 1047, 1049 ("To find the 90-day time limit unsuspended by appellate review would render the appellate review process futile and the court of appeal's initial ruling here purely academic.").

The state's ability to commence the adjudication ceased on December 8, 2015, when the juvenile court stayed the proceedings pursuant to La.Ch.C. art. 832 pending a determination of R.M.'s competency. At that point, just 15 days from R.M.'s appearance had elapsed. R.M. was not found competent to proceed until March 17, 2016. When the juvenile court granted R.M.'s motion to dismiss 48 days later on May 4, 2016, close to a month of the 90-day period provided by La.Ch.C. art. 877 remained. Therefore, the juvenile court prematurely dismissed the petition. Furthermore, we note that the 90-day period has remained suspended by appellate review. See State in the Interest of A.C., supra . Accordingly, we reverse the rulings of the courts below and remand for further proceedings in the juvenile court consistent with the views expressed here.

REVERSED AND REMANDED

      Children's Code art. 877 provides:
      A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
      B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
      C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
      D. For good cause, the court may extend such period.

      Children's Code art. 832 provides:
      A child's mental incapacity to proceed, as defined by this Title, may be raised at any time by the child, the district attorney, or the court. When the question of the child's mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding, except the filing of a delinquency petition, until counsel is appointed and notified in accordance with Article 809(B) and the child is found to have the mental capacity to proceed.

      See In re Gault , 387 U.S. 1, 30, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967) (stating that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone").

      The court of appeal also erred to the extent it found:
      Due to the judge's illness at the January 27, 2016 hearing date, the court made a single good cause finding to extend the trial deadline. However, at subsequent hearing dates, the State did not request or receive a good cause extension. Therefore, any proceeding after February 21, 2016 would violate the time limit mandated under article 877.
      State in the Interest of R.M. , 16-0616, p. 4, 208 So.3d at 969 (emphasis added). On the contrary, a judgment entered by the juvenile court on April 14, 2016, provides that the court continued the case on its own motion based upon the failure of the clerk's office to issue subpoenas to the police officers involved in the case and reset the trial date for May 4, 2016, specifically finding "good cause to extend Art. 877 trial deadlines" and noting R.M.'s objection.


text:
    The LOUISIANA DEPARTMENT OF JUSTICE and Jeff Landry, in his official capacity as Attorney General for the State of Louisiana v. John Bel EDWARDS, in his official capacity as Governor of the State of Louisiana
    No. 2017-C-2020
    Supreme Court of Louisiana.
    March 23, 2018
    Writ denied.
    JOHNSON, C.J., would grant the writ application in part and assigns reasons
   I would grant the Governor's writ application because I believe the rulings below adopt an unreasonably restrictive view of executive authority and of the separation of powers envisioned by the Louisiana Constitution. Requiring state agencies and state contractors to treat Louisiana citizens equally is not an ultra vires legislative act by the executive branch. It is a rational policy choice that is consistent with the Governor's legal obligation to faithfully execute the Equal Protection Clause and the broad remedial purpose of both state and federal anti-discrimination statutes. The rulings below erode the authority of the executive branch, and may spell doom for longstanding anti-discrimination policies at a host of public institutions. I am dismayed that Louisiana finds itself, yet again, on the wrong side of history in a matter of civil rights and social justice.

Executive Order JBE 2016-11 prohibits state agencies from discriminating based upon "race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability or age." It also imposes similar non-discrimination requirements upon companies so long as they voluntarily contract with the state to provide services. The courts below held that this order-in particular, the portion of the order prohibiting discrimination based upon sexual orientation and gender identity-usurped legislative authority in violation of the separation-of-powers clause in Article II, § 2 of the Louisiana Constitution. I disagree.

The Governor's anti-discrimination policy is not some novel exercise of executive power in a domain exclusively reserved to the Legislature. It is similar to policies enacted through executive order by recent Governors Edwin Edwards and Kathleen Blanco, as well as governors in other states. It mirrors policies currently in place at LSU, Southeastern, Southern University, McNeese, Nicholls State, University of Louisiana at Lafayette, and many other public institutions. These executives and institutions have enacted more protective policies preventing state government from discriminating against citizens based on sexual orientation and gender identity. Few would seriously argue that a governmental institution violates our Constitution by adopting internal policies that prevent discrimination against minority groups.

This ruling needlessly diminishes the power of the Governor to enact policy and oversee the operation of state government. The Governor has an independent obligation to "faithfully execute[ ]" laws and an implied obligation to establish reasonable policies in furtherance of those laws. He also enjoys wide discretion to regulate the terms of state services contracts. The rulings below could prevent the administration from enforcing other policies that have existed for decades when said policy lacks legislative authorization.

Recent developments in the area of Title VII underscore the propriety-and perhaps even the necessity-of the Governor's anti-discrimination policy. The EEOC recently has taken the position that discrimination based upon sexual orientation is a form of sex discrimination under Title VII. Federal appeals courts have followed suit. Two recent decisions from the Second and Seventh Circuits argue persuasively that Title VII sex discrimination extends to claims brought by homosexuals. The Sixth Circuit reached a similar conclusion in a case brought by a transgendered person involving discrimination based upon gender identity. These cases and agency mandates suggest that the Governor has not exceeded his authority here, but has instead complied with his duty to "faithfully execute" the laws of the United States.

Hughes, J., would grant in part.

With respect to the court of appeal, the issues presented in the reconventional demand are likely to reoccur and should be addressed now.

      Exec. Order KBB 04-54 and Exec. Order EWE 92-7; see also Mont. Const. art. III, § 1 (mandating the separation of powers); Mont. Const. art. II, § 4 (prohibiting discrimination based upon "race, color, sex, culture, social origin or condition, or political or religious ideas"); Mont. Exec. Order No. 04-2016 (prohibiting discrimination based upon sexual orientation and gender identity imposing most robust and protective anti-discrimination policies for state agencies and state contracts). Similar orders exist in Kentucky, Michigan, Delaware, Pennsylvania, and Virginia.

      La. Const. art. IV, § 5 (A).

      See La. R.S. § 39:5 (placing Commissioner of Administration under the authority and supervision of the Governor); La. R.S. § 39:1651 (authorizing Commissioner of Administration to promulgate regulations relating procurement of service contracts); La. R.S. § 39:1654 (placing chief procurement officer under the authority of the Commissioner of Administration and authorizing him to provide contractual specifications); La. R.S. § 39:1617 -21 (exempting service contracts from competitive bidding and selection requirements); La. R.S. § 39:1625 (setting forth bare "minimum" requirements for service contracts).

      Zarda v. Altitude Express, Inc. , 883 F.3d 100, 105-08 (2d Cir. 2018) (en banc ).

      Id. ; see also Hively v. Ivy Tech Comm. College of Ind. , 853 F.3d 339 (7th Cir. 2017) (en banc ).

      Equal Employment Opportunity Comm'n v. R.G. &. G.R. Harris Funeral Homes, Inc. , 884 F.3d 560 (6th Cir. 2018).


author: HUGHES, J., would grant.

text:
    STATE EX REL. Dennis Donyel THOMAS v. STATE of Louisiana
    NO. 2017-KH-0993
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Rudy FRANCIS
    NO. 2018-KK-0264
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: CRICHTON, J., would grant rehearing.

text:
    STATE of Louisiana v. Kerry PARKER
    NO. 2018-KK-0290
    Supreme Court of Louisiana.
    April 5, 2018
    Stay denied. Application for rehearing denied.
   CRICHTON, J., would grant rehearing.

GENOVESE, J., would grant rehearing.


text:
    Lataria DUPLESSIS v. Charles TURNER, Metro Service Group, Inc., and Scottsdale Insurance Company
    NO. 2018-CC-0498
    Supreme Court of Louisiana.
    March 31, 2018
    Denied.


text:
    Martin E. REGAN, Jr. v. Assistant Attorney General, James David CALDWELL, Jr., and the Attorney General James D. "Buddy" Caldwell, and the office of the Attorney General, State of Louisiana
    NO. 2017-C-0963
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: CRICHTON, J., would grant.

text:
    Dale CORDELL v. TANAKA, LLC, Lorna Madison a/k/a Lorna Humphrey, ABC Insurance Company, XYZ Insurance Company, Martin and Malkemus Company, and Plaza Architecture Planning
    NO. 2018-C-0235
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   CRICHTON, J., would grant.

GENOVESE, J., would grant.


author: GENOVESE, J., recused.

text:
    Jerry J. SUIRE, et al. v. OLEUM OPERATING COMPANY, et al.
    NO. 2018-C-0279
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   GENOVESE, J., recused.


text:
    IN RE: APPEAL OF the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-077
    NO. 2018-OB-0040
    Supreme Court of Louisiana.
    April 6, 2018
    Leave to appeal denied.


text:
    STATE EX REL. John POULLARD v. STATE of Louisiana
    NO. 2016-KH-2135
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   GENOVESE, J., recused.


author: WEIMER, J., recused.

text:
    STATE EX REL. Jesse M. TREVATHAN v. STATE of Louisiana
    NO. 2017-KH-0166
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Glynn JUNIORS, Jr.
    NO. 2010-OK-0592
    Supreme Court of Louisiana.
    April 16, 2018
    Denied. Moot.


text:
    STATE of Louisiana v. Roman FORD
    NO. 2017-KO-0936
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Sebastian CUEVAS
    NO. 2018-KK-0411
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.


author: CRICHTON, J., recused.

text:
    STATE EX REL. Jasmond OSBORNE v. STATE of Louisiana
    NO. 2016-KH-1580
    Supreme Court of Louisiana.
    April 6, 2018
    Reconsideration granted. Writ denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Cedric Lynn HARVEY
    NO. 2017-KO-1031
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Edward N. GREEN
    NO. 2017-KO-1080
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Brandon GRAY
    NO. 2018-KH-0250
    Supreme Court of Louisiana.
    April 16, 2018
    Writ not considered. Untimely filed pursuant to Louisiana Supreme Court Rule X § 5.


text:
    STATE of Louisiana v. John Lee BASS
    NO. 2018-KH-0296
    Supreme Court of Louisiana.
    April 16, 2018
    Writ not considered. Untimely filed pursuant to Louisiana Supreme Court Rule X § 5.


text:
    Dana Lovett HUMPHREYS v. Clay Randall HUMPHREYS
    NO. 2018-CJ-0323
    Supreme Court of Louisiana.
    April 16, 2018
    Writ denied. Request for sanctions denied.


text:
    STATE of Louisiana v. Hank Allen MORAN aka-Hank Moran
    NO. 2017-KO-1000
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE EX REL. Marcus V. COLEMAN v. STATE of Louisiana
    NO. 2017-KH-0321
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Jeremy Morris ERVIN
    NO. 2018-KH-0231
    Supreme Court of Louisiana.
    April 16, 2018
    Writ not considered. Untimely filed pursuant to Louisiana Supreme Court Rule X § 5.


text:
    STATE EX REL. Edward A. LOWERY, Jr. v. STATE of Louisiana
    NO. 2016-KH-2131
    Supreme Court of Louisiana.
    April 20, 2018
    Not Considered. See La.S.Ct.R. IX § 6.


text:
    STATE of Louisiana v. Anthony BAUMAN
    NO. 2018-KH-0332
    Supreme Court of Louisiana.
    April 16, 2018
    Writ not considered. Untimely filed pursuant to Louisiana Supreme Court Rule X § 5.


author: GENOVESE, J., would grant.

text:
    Ramona PIERRE v. STAR AFFORDABLE HOUSING ALPIC, Max Specialty Insurance Company, Smith Square Homes, and Summit Apartment Management Co., Inc.
    NO. 2018-CC-0182
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.
   GENOVESE, J., would grant.


text:
    James A. THOMAS and Sharon Thomas v. Bryan BOYD and Werner Enterprises, Inc. of Nebraska
    NO. 2018-C-0232
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    Michael ALOISE, Jr. v. CAPITAL MANAGEMENT CONSULTANTS, INC., Marwan Mohey-El-Dien, E. Margriet Langenberg, and Barbara Lane Irwin
    NO. 2017-C-0784
    Supreme Court of Louisiana.
    April 20, 2018
    Not considered. See Louisiana Supreme Court Rule IX, § 6.
   HUGHES, J., would grant.


text:
    STATE EX REL. Stephen K. LANPHIER v. STATE of Louisiana
    NO. 2017-KH-0180
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.
   HUGHES, J., would grant.


text:
    AEGIS CONSTRUCTION, INC. v. LULING LIVING CENTER, LLC
    NO. 2018-CC-0364
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    Tiffany WESTLUND and Tim Sedlock v. NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA, et al.
    NO. 2018-CC-0624
    Supreme Court of Louisiana.
    April 27, 2018
    Denied. Adequate remedy on appeal.
   GUIDRY, J., would grant.


text:
    STATE EX REL. Michael W. HERRING v. STATE of Louisiana
    NO. 2016-KH-2240
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE EX REL. George MCGEE v. STATE of Louisiana
    NO. 2017-KH-0325
    Supreme Court of Louisiana.
    April 20, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. McGee v. State, 17-0134 (La. __/___/18).


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-073
    NO. 2018-OB-0091
    Supreme Court of Louisiana.
    April 20, 2018
    Leave to appeal denied.


text:
    STATE of Louisiana v. Darrin Kashy DUHON a/k/a Darrin Duhon
    NO. 2017-KO-1278
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    TOURO INFIRMARY v. MULTIPLAN, INC., American Maritime Officer, AmeriHealth Administrators, et al.
    NO. 2018-CC-0385
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Gregory COMEAUX
    NO. 2018-KK-0390
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Jeremy JOHNSON
    NO. 2017-KP-0872
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Lawrence NIXON
    NO. 2017-KO-0966
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Robert N. GREEN
    NO. 2017-KO-1348
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Gerald CRUMPLEY v. GEORGIA-PACIFIC, LLC, et al.
    NO. 2018-CC-0380
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   WEIMER, J., would grant.


text:
    IN RE: MEDICAL REVIEW PANEL OF Mario HUSRT
    NO. 2017-OC-0803
    Supreme Court of Louisiana.
    April 27, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


text:
    Tiffany WESTLUND and Tim Sedlock v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, et al.
    NO. 2018-CC-0625
    Supreme Court of Louisiana.
    April 27, 2018
    Denied. Adequate remedy on appeal.
   GUIDRY, J., would grant.

HUGHES, J., would grant.


text:
    Matthew COURTNEY and Louisiana Shooters Unlimited/Arete Training Group v. Paul GRAFFEO and Professional Security Training, Inc.
    NO. 2018-CC-0373
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    Kevin QUATREVINGT v. STATE of Louisiana, THROUGH the Honorable Jeff LANDRY, Attorney General
    NO. 2018-C-0391
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
    HUGHES, J., would grant and docket.


text:
    TOURO INFIRMARY v. MULTIPLAN, INC., et al.
    NO. 2018-CC-0386
    Supreme Court of Louisiana.
    April 27, 2018
    IN RE: Multiplan Inc.; Multiplan Services Corporation ;-Defendant(s)
    Denied.


text:
    STATE of Louisiana v. Malcolm JACK
    NO. 2017-KO-1281
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Austin Benjamin CEDARS
    NO. 2017-K-1343
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Reginald MORRISON v. STATE of Louisiana
    NO. 2016-KH-2277
    Supreme Court of Louisiana.
    April 27, 2018
    Reconsideration denied.