O’Dwyer Complaints of judicial misconduct tossed by Judge Edith Jones

Before reporting Judge Jones’ decisions, I want to make it clear that I did not consider Ashton’s complaints of judicial misconduct and his “pot of gold information” one in the same.  That said, and with further discussion saved for a day when I have more time, I move on to the two Orders issued by Judge Jones.

O’Dwyer filed Judicial Misconduct Complaint Nos. 05-09-90128 and 10-09-90129 against  United States District Judges Stanwood R. Duval, Jr. and Ivan L.R. Lemelle.  Complaint Nos. 05-09-90130 through 05-09-90141 were directed toward United States Circuit Judges Carolyn Dineen King, W. Eugene Davis, Jacques L. Wiener, Jr., Emilio M. Garza, James L. Dennis, Edward C. Prado, Jennifer W. Elrod, Leslie H. Southwick, Thomas M. Reavley, Will Garwood, and Rhesa H. Barksdale and United States District Judge Ron Clark.

Attorney Ashton R. O’Dwyer, Jr. has filed a judicial misconduct complaint, and several supplemental complaints, against United States District Judge Stanwood R. Duval, Jr. who has presided over the Katrina Canal Breaches Consolidated Litigation [hereafter “Katrina Canal Litigation”], and against United States District Judge Ivan R. Lemelle who presided over O’Dwyer’s suspension and disbarment proceedings and other litigation.’

O’Dwyer’s allegations of misconduct are largely conclusory in nature, and are based on his dissatisfaction with rulings in, and the results of, the underlying proceedings.

In dismissing the Complaint against Judge Duval (05-09-90128), Judge Jones wrote,  “with respect to some of 0 ‘Dwyer’s allegations of fact pertaining to Judge Duval’s purported failure to disclose fully the extent of his relationship with plaintiffs’ attorney Calvin C. Fayard, Jr., and the judge’s failure to recuse himself sua sponte, I have conducted a limited investigation pursuant to 28 U.S.c. § 352(a) and (b)(l)(B):

O’Dwyer complains that Judge Duval failed to recuse himself despite having a long friendship with Mr. Fayard, and despite employing Mr. Fayard’s daughter, Caroline, as his law clerk. O’Dwyer asserts that Judge Duval’s “social or other relationships” influenced the judge’s conduct and judgment, and “advance[d] the private interests of others” to the detriment of O’Dwyer and his clients.

During a status conference in March 2006, Judge Duval disclosed in open court his friendship with Mr. Fayard and his employment of Ms. Fayard as his law clerk. The judge invited the parties to file motions for his recusal if they disagreed with his stated belief that he could adjudicate impartially…

Judge Jones responds to specific allegations made by O’Dwyer; and her Order is linked for those who want to examine his allegations and her response in detail.

O’Dwyer complains that Judge Lemelle denied his motion for recusal. This allegation relates directly to the merits of the judge’s decision, and is therefore subject to dismissal under 28 U.S.C. § 352(b)(I)(A)(ii).

O’Dwyer alleges further that Judge Lemelle engaged in “criminal conduct” and conspired to deny him due process of law and “valuable property rights,” and to “defame … disgrace … embarrass … and humiliate him by wrongfully interfering with his right to practice law” in the district court. He also alleges that the judge “allowed social or other relationships to influence [his] conduct and judgment … [and] to advance the private interests of others” to the detriment of O’Dwyer and his clients, but fails to provide any evidence in support of the allegation.

Although previously stated in the Order, her conclusion is applicable to her decision on both Complaints:

These conclusory assertions are insufficient to support a finding of judicial misconduct, and are therefore subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii).

Judicial misconduct proceedings are not a substitute for the normal appellate review process, nor may they be used to obtain reversal of a decision or a new trial. The complaint is DISMISSED.

However, before moving to the second set of complaints and related Order, I want to point out a  footnote that provides insight on O’Dwyer’s position relative to the Complaint against Judge Duval:

In a somewhat different context this Court looked at this issue in In Re: Katrina Canal Breaches Litigation, No. 08-30962,2009 WL 3614541, at *4-5 (5th Cir. 2009), regarding a case before Judge Duval in which Mr. Fayard had been counsel for the State of Louisiana. The plaintiffs, O’Dwyer’s clients, filed a motion to disqualify Judge Duval in January 2008, which the judge denied as untimely filed. On appeal, the plaintiffs argued that this court should reverse the district court’s dismissal of their claims against the federal government because the dismissal was “motivated in part, by actual bias and prejudice and other misconduct” arising out of Judge Duval’s friendship with Mr.. Fayard…

This court agreed with the district court that the motion to disqualify was untimely.

The district court judge disclosed his friendship with the attorney at issue in March 2006, at the outset of the consolidated litigation. Plaintiffs did not raise any objection.  Plaintiffs did not move for recusal until January 2008, nearly two years after the friendship was disclosed and a year-and-a-half after the counsel at issue ceased to represent any defendant in this case.

The second Order (Complaint Nos. 05-09-90130 through 05-09-90141) summarized the nature of this set of Complaints:

O’Dwyer’s complaints are general in nature and are supported only by references to lengthy pleadings filed in the underlying cases. He was asked twice to provide specific citations to the portions of exhibits that he believes support inferences of misconduct, and to explain why he believes such inferences should be made. He was also advised that failure to provide specific citations might lead to the exhibits being omitted from consideration. Given that O’Dwyer has failed to comply with the requests to clarify his claims and to refer specifically to the evidence in support of those claims, his allegations are reviewed on the basis of the statements made in his complaints alone.

Judge Jones dismissed this set of complaints on much the same basis as the first; however, she went further:

Along with the three complaints filed against the judges who presided over his appeals, O’Dwyer also filed a complaint and four supplemental complaints against a second district judge, and a complaint and three supplemental complaints against a third district judge. The allegations in those other complaints have also been dismissed pursuant to 28 U.S.C. § 352(b) (l)(A)(ii) and (iii).

The filing of these complaints, only one of which included any allegations of requisite specificity, and none of which were of colorable merit, amounts to harassment of the subject judges.

Because of this abuse of the complaint process, O’Dywer’s right to file complaints is hereby SUSPENDED pursuant to Rule 10(a), Rules For Judicial-Conduct or JudicialDisability Proceedings. O’Dwyer may show cause, through a petition for review submitted pursuant to Rule 18, why his right to file further complaints should not be so limited.

Ashton has until the 8th of April to petition for a review of both Orders and a copy of the Rules for Judicial-Conduct and Judicial-Disability Proceedings was included with the orders.

I will only add what I’ve been told and believe to be true – “letting go is not something you do for others, it’s something you do for yourself”.

Leave a Reply

Your email address will not be published. Required fields are marked *