F.  Turner v. Pleasant—Another Case Where Counsel Sought Judge Porteous's Recusal

1.  Introduction

In 2004, Judge Porteous faced a recusal motion in the case Turner v. Pleasant,⁶²² arising from his relationship with Pleasant's attorney, Dick Chopin. Just as Lifemark's recusal motion in the Liljeberg case threatened to expose Judge Porteous's prior dealings with the attorneys in that case, the recusal motion in Turner v. Pleasant threatened Judge Porteous with the disclosure that he had been taking hunting trips from Diamond [an oil rig company with headquarters in Houston, Texas], including having gone on a Diamond hunting trip with defense counsel Chopin during the pendency of the case. As discussed below, there are striking similarities between how Judge Porteous handled the recusal motions in Turner v. Pleasant and Liljeberg.

2.  Background—Procedural History

On November 30, 2001, the complaint in Turner v. Pleasant was filed. This was a personal injury case alleging that the defendant (Pleasant) operated his boat in a negligent fashion, causing an excessive wake that tossed Mrs. Turner in the air and caused her to sustain a compression fracture of her back. The plaintiffs were represented by Ernest Souhlas and his partner Carter Wright; the defendant was represented by Chopin. The defense medical expert was Dr. Christopher Cenac, with whom Judge Porteous had previously hunted and had a social relationship.⁶²³ On January 3-5, 2003, while the case was pending, Judge Porteous went on a Diamond hunting trip which Chopin also attended.⁶²⁴

About 3 months after Judge Porteous and Chopin went on the hunting trip, on April 22-23, 2003, a non-jury trial was held in the Turner case. Dr. Cenac was one of the defendant's medical experts.⁶²⁵

Nearly 9 months after trial, on January 27, 2004, Judge Porteous issued his opinion in favor of the defendant.⁶²⁶ In reaching his decision, he specifically credited the testimony of Dr. Cenac.⁶²⁷

3.  Souhlas's Motion for a New Trial and Motion to Recuse Judge Porteous

After the April 2003 trial in Turner v. Pleasant, and while the case was awaiting Judge Porteous's decision, Souhlas learned that Judge Porteous had gone hunting with Chopin while the case was pending.⁶²⁸ Accordingly, on February 5, 2004, a week after Judge Porteous issued his decision, Souhlas filed a motion for a new trial and also moved to recuse Judge Porteous.⁶²⁹

In that motion, after arguing that Judge Porteous's decision was contrary to the facts elicited at trial, Souhlas requested, in the alternative that "this Court grant a new trial and recuse itself in this matter based upon ... the grounds that the findings of fact and the conclusions of law reflect partiality and bias in favor of the defendant and/or defense counsel in this case."⁶³⁰

In his opposition to the motion, Chopin responded primarily by attacking Souhlas:

In an act of desperation never previously witnessed by the undersigned, the plaintiffs have vituperatively attacked the Court and its integrity. Not only are the plaintiffs' claims flagrantly in violation of all rules, they are reprehensible. Moreover, the plaintiffs do not even attempt to offer any support for their new allegations.

* * *

The defendants will not dignify the plaintiffs' allegations by according them any additional print, except to say that the plaintiffs' motion for recusal also should be denied.⁶³¹

On March 22, 2004, Judge Porteous denied Souhlas's motion. In doing so, he did not discuss or address any of the factual assertions, terming them "unsubstantiated." Judge Porteous stated:

To suggest that the Court has any partiality for the defendant and/or defense counsel is utterly unsubstantiated given that the Court has often demonstrated its complete independence and the absence of any partiality or favoritism in prior cases involving defense counsel. Additionally, in a previous non-jury case involving one of plaintiff's counsel, Mr. Souhlas, where a substantial verdict was rendered in favor of the plaintiff, there was no suggestion of any partiality by the court towards plaintiffs' counsel, even though he has been a friend of this judge for over twenty years. This flagrant attack on the credibility of this Court is not only unfounded and without merit, but not supported by any evidence. This Court finds that no reasonable man would harbor doubts about this judge's impartiality, and therefore, recusal is not warranted.⁶³³

4.  Souhlas's Appeal to the Fifth Circuit

Souhlas appealed to the Fifth Circuit, and raised the same issues as to Judge Porteous's relationship with Chopin that he had raised below. He argued that the factual allegations had neither been addressed nor disputed, by either Judge Porteous or Chopin, in the District Court proceedings.⁶³⁴

In response, Chopin relied on Judge Porteous's language in his ruling denying the recusal, including Judge Porteous's statement that he and Souhlas had been friends for 20 years.⁶³⁵

In his reply brief to the Fifth Circuit, Souhlas reasserted the specificity of his allegations, i.e., Judge Porteous's ongoing social relationship with and hunting trip with Chopin during the pendency of the proceedings. Souhlas further addressed Judge Porteous's contention that he and Judge Porteous were longtime friends, and specifically denied "that a close personal relationship exists between plaintiffs' counsel and the District Court."⁶³⁶

In January 2005, while the case [was] raising the issue of Judge Porteous's relationship with Chopin, Judge Porteous and Chopin shared a room together on another Diamond sponsored hunting trip.⁶³⁷

On March 31, 2005, the Fifth Circuit denied the appeal.⁶³⁸ As to Souhlas's motion to recuse, the Fifth Circuit noted only that the allegation was unsubstantiated.

5.  Discussion of Judge Porteous's Handling of the Recusal Motion in Turner v. Pleasant

It is noteworthy that at the time of Souhlas's motion, in February 2004, the Farrar v. Diamond case (a case with Chopin as Diamond's counsel that was discussed above) was pending in front of Judge Porteous. Thus, if either Chopin or Judge Porteous were to have disclosed that they had gone hunting together as guests of Diamond while the Turner case was pending, such a disclosure could have caused problems for Judge Porteous and Chopin in connection with the Farrar case (and also revealed that Judge Porteous had accepted prior Diamond trips as well).⁶³⁹ Accordingly, the entire thrust of Judge Porteous's (and Chopin's) response to Souhlas's allegations was to assert that the allegations were unproven (not that they were false), to disclose no relevant information which would permit a fair assessment of the merits of the recusal motion, and to attack Souhlas for raising the issue.

Moreover, Judge Porteous's statement that Souhlas "has been a friend of this judge for over twenty years" deserves particular scrutiny—both for what Judge Porteous may have intended to be the legal or factual significance of that purported relationship, as well as for the veracity of the assertion. One reading of Judge Porteous's "friend" statement was that he intended to imply there was a symmetry between his relationship with Souhlas and his relationship with Chopin—the implication presumably being that if he were friends with both men then Souhlas's complaint could not be meritorious since Judge Porteous would have no more incentive to be partial to Chopin than to be partial to Souhlas.⁶⁴⁰ However, not only is this argument indefensible even if it were true; but Souhlas testified at a deposition that he was not a "friend" of Judge Porteous. Souhlas never went to lunch or dinner with Judge Porteous, never traveled with Judge Porteous on any trips, did not go to his swearing-in, had never been to Judge Porteous's house, had never had Judge Porteous to his house, had never invited Judge Porteous to his annual "hoe-downs" (events to which he invited a broad swath of the New Orleans legal community), and had never met Judge Porteous's wife—in fact, did not even know her name.⁶⁴¹

Thus, as he did in the Liljeberg case, Judge Porteous, when faced with allegations that would threaten to disclose his relationship with parties and attorneys who had given him things of value, handled the motion in a manner calculated to seal off further inquiry into those relationships. He disclosed no pertinent material facts about his relationship with Chopin, failed to address the discrete allegations known and raised by the moving counsel, and made deceptive statements that distorted the factual record as to his relationship with the attorney at issue.⁶⁴² By so distorting the record, Judge Porteous assured affirmance on appeal of his denial of the recusal motion, and a victory below for Chopin. Souhlas's clients were never informed by the Judge who denied them compensation for their serious injuries that he was a close friend and frequent lunch guest of the defendant's lawyer Chopin and had gone on a hunting trip with him while the case was pending and shortly prior to trial; nor were they informed that Judge Porteous had been a house guest of the defendant's expert witness, whose credibility was at issue.⁶⁴³