Monroe businessman Stanley Palowsky III says the special appointed judge presiding over his lawsuit against Fourth Judicial District Court officials engaged in ex parte communications with court officials’ attorneys to thwart Palowsky’s efforts in a separate case.
That was the thrust of Palowsky’s motion to recuse retired Judge Jerome “Jerry” Barbera, of Thibodeaux, from presiding over Palowsky’s lawsuit against law clerk Allyson Campbell and five judges at the district court. Barbera was appointed as an ad hoc judge in Palowsky’s case in 2015.
Palowsky filed the recusal motion at the district court Sept 6. The Ouachita Citizen obtained a copy of the filing from the Ouachita Parish Clerk of Court’s office.
On Tuesday, the state Supreme Court tapped retired Judge Jimmie C. Peters of Jena to serve in an ad hoc capacity to hear Palowsky’s motion to recuse Barbera. Peters formerly served on the Third Circuit Court of Appeal. Prior to serving on the Third Circuit, Peters was a district court judge in LaSalle Parish.
In Stanley R. Palowsky III and others v. Allyson Campbell and others, Palowsky accused Campbell of destroying or concealing documents he filed in a separate lawsuit against his former business partner, Brandon Cork: Stanley R. Palowsky III and others v. W. Brandon Cork and others. The litigation is complicated, partly because both Palowsky v. Campbell and Palowsky v. Cork involve similar allegations at times.
In Palowsky v. Campbell, Palowsky also alleged a cover-up of Campbell’s activities by five judges at Fourth Judicial District Court: Fred Amman, Wilson Rambo, Carl Sharp, Stephens Winters and retired Judge Benjamin “Ben” Jones. Jones is now the court’s administrator. Sharp retired from the bench last year.
According to Palowsky’s Sept. 6 memorandum in support of recusing Barbera, legal invoices from attorneys in Palowsky v. Campbell showed Barbera collaborated with the attorneys to prevent Palowsky from obtaining testimony from judges in Palowsky v. Campbell as well as in a separate case, Palowsky v. Cork.
Palowsky’s memorandum pointed out that Barbera was not involved in the Palowsky v. Cork litigation. The Palowsky v. Cork litigation involves an environmental remediation company that was allegedly blackballed when Palowsky exposed a supposed kickback scheme. Campbell’s attorney, Brian Crawford of Monroe, and the judges’ attorney, Jon Guice of Monroe, are not enrolled as attorneys in Palowsky v. Cork either.
“In light of Judge Barbera’s actions of having ex parte communications with defense counsel and protecting the defendant judges (one of whom is handling a custody dispute for a family member of Judge Barbera) from having to give sworn testimony, the probability of his actual bias is simply too high to be constitutionally permissible, and his impartiality is reasonably in question,” stated Palowsky’s memorandum.
Palowsky’s motion to recuse Barbera also noted that Barbera’s niece was involved in a child custody case at Fourth Judicial District Court that began in September 2015. At the time, Sharp was presiding over the child custody case, Danny Taylor v. Jennifer Lynn Jessup. Sharp also was a defendant in Palowsky v. Campbell and the presiding judge in Palowsky v. Cork. Barbera did not disclose the connection until Oct. 29, 2015.
Jennifer Jessup was the daughter of Barbera’s brother’s wife. In his October 2015 email disclosing the relationship, Barbera acknowledged Jessup also was one of his former clients: he filed a motion to expunge her felony conviction in East Baton Rouge Parish in early 2015.
Palowsky appears to have filed his motion late Friday after the state Supreme Court ruled that afternoon to deny an application for a rehearing in Palowsky v. Campbell.
In late June, the Supreme Court overturned a First Circuit Court of Appeal ruling that confirmed Barbera’s November 2015 ruling to dismiss Palowsky’s lawsuit. The First Circuit had previously ruled Palowsky could proceed with his lawsuit against Campbell. In effect, the Supreme Court gave Palowsky the green light to reignite his lawsuit against Campbell and the judges.
In response to the Supreme Court’s ruling, the defendants applied for a rehearing. A rehearing simply allows parties in a civil proceeding to present oral arguments a second time.
Supreme Court Chief Justice Bernette Johnson, Justice Scott Crichton, and pro tempore Justice Susan Chehardy voted to grant the defendants’ request for a rehearing.
In his reasons for wanting to grant the rehearing, Crichton wrote, “I would grant rehearing in this matter. In my view, the per curiam places every judge in the State at risk of retaliation and intimidation by disgruntled litigants. I continue to believe that the per curiam risks eroding the independence of the judiciary and adversely affecting the public interest.”
Supreme Court Justices James Genovese, Jefferson Hughes III, John Weimer and ad hoc Justice Michael Kirby voted to deny the rehearing. Kirby was tapped to serve as an ad hoc justice on behalf of Clark, who recused from Palowsky v. Campbell. Campbell previously clerked for Clark when he was a judge at Fourth Judicial District Court. Clark also is on medical leave from the Supreme Court for the month of September.
Clark signed the court order appointing Barbera as an ad hoc judge in Palowsky v. Campbell.
Overlap in Campbell,
Palowsky’s Sept. 6 memorandum outlined the events in both Palowsky v. Cork and Palowsky v. Campbell in a seven-page or 43-point timeline. Some of the details in Palowsky’s timeline concerned Campbell’s attorney, Crawford, but most of the allegations concerned alleged discussions between Barbera and the judges’ attorney, Guice.
For example, Palowsky’s memorandum pointed out that Crawford’s legal invoices showed he began billing in Palowsky v. Campbell on June 25, 2015, though Palowsky did not file his lawsuit against Campbell until nearly a month later on July 22, 2015.
Prior to the lawsuit’s filing, Crawford billed $3,025 in Palowsky v. Campbell, according to his legal invoices.
“This information comes from the bills and affidavit that Crawford submitted to this Court on February 26, 2016, in connection with Campbell’s motion for sanctions against Palowsky,” stated Palowsky’s memorandum. “Significantly, Crawford even included in these bills his time for Campbell’s criminal defense when it was Hanna Media that filed a criminal complaint against the 4th JDC regarding its administrative handling of Campbell’s actions.”
Hanna Media Inc., which owns The Ouachita Citizen, was sued by the Fourth Judicial District Court in early 2015 as part of a legal dispute about whether Campbell’s personnel file was a public record. The Ouachita Citizen filed a criminal complaint against the district court for refusing to turn over Campbell’s personnel file.
The newspaper sought Campbell’s personnel file after the state Legislative Auditor’s office released an audit stating a court employee may have committed public payroll fraud. The district court responded the next day by suing the newspaper. An ad hoc judge ultimately ruled in the district court’s favor, though Campbell’s personnel file was later disclosed during a criminal investigation of the law clerk’s activities.
Campbell’s personnel file revealed that court officials had investigated her for discrepancies on her time sheets, which showed she claimed to work seven hours on the same days that she also went to doctor appointments, played tennis, and flew from New York to Monroe. Campbell claimed her time sheets were “more of an estimate.” State authorities declined to charge her.
Though Palowsky v. Cork and Palowsky v. Campbell involved different defendants, the two cases involved allegations that overlapped at times.
For example, in mid to late 2015, Palowsky sought testimony from district court judges in Palowsky v. Cork to show why the judges should recuse themselves. Most of Palowsky’s reasons involved the judges’ alleged cover-up of Campbell’s activities. If the judges testified in Palowsky v. Cork, it was possible their testimony might have a bearing on his second lawsuit, Palowsky v. Campbell. In August 2015, Judge Sharp issued a stay of discovery in Palowsky v. Cork that prevented Palowsky from deposing judges or putting any judges on the witness stand. Later, the Second Circuit Court of Appeal ruled that Sharp’s stay of discovery in Palowsky v. Cork was an absolute nullity.
In light of the Second Circuit’s ruling, Palowsky’s attorneys made it known on Oct. 23, 2015 they would immediately seek to depose several judges at the district court to establish legal grounds to recuse Sharp and other judges from Palowsky v. Cork.
A few days later, the judges’ attorney, Guice, billed for speaking with a judge about recusals. Guice’s legal invoice does not name the judge. Palowsky claims the judge must have been Barbera. Guice’s legal invoices were submitted in Palowsky v. Campbell, the case over which Barbera presided.
There was no reason to speak with Barbera about recusals, because there was no pending recusal motion in Palowsky v. Campbell, according to Palowsky. The only pending recusal motion was in Palowsky v. Cork. The inclusion of this detail on Guice’s legal invoice appears to be the basis for Palowsky’s allegation that Barbera engaged in ex parte communications with Guice to thwart Palowsky’s other lawsuit, Palowsky v. Cork.
“On October 26, 2015, attorney Guice billed .4 hours (at no charge) [in Palowsky v. Campbell] for ‘telephone conference with judge regarding recusal,’” stated Palowsky’s memorandum. “The entry is included in the bill that was submitted to Judge Barbera on February 26, 2016, along with an affidavit attesting that the entries represented attorney fees the defendant judges incurred related to the contempt and sanction motions pending before Judge Barbera. It should be noted there was no motion to recuse pending the [Palowsky v. Campbell] case before Judge Barbera. It should also be noted that attorney Guice typically refers to his judge clients by name or uses the term ‘client’ in his billing statements.”
More charges related to Palowsky v. Cork also cropped up in the legal invoices from attorneys in the second lawsuit, Palowsky v. Campbell, according to Palowsky. For example, Guice’s associate, Justin Myers, billed 0.8 hours ($120) in Palowsky v. Campbell for researching state law and the state’s Code of Civil Procedure concerning “discovery to support grounds of recusal.”
“If such communication did occur, as it appears to have, then not only have Judge Barbera and defense counsel engaged in ex parte communication, but also it would indicate that Judge Barbera has taken an interest in protecting the defendant judges from discovery in litigation assigned to him and also in litigation in which he should have no interest,” stated Palowsky’s memorandum. “This raises the question of Judge Barbera’s impartiality.”
Guice and Myers also billed for additional conferencing with defendant judges and researching of matters related to subpoenas issued to judges and the recusal of judges.
“These entries were also submitted to Judge Barbera as part of the attorney fees the defendant judges claimed they were due in the [Palowsky v. Campbell] matter as part of the motion for sanctions,” stated Palowsky’s memorandum.
Palowsky’s memorandum called attention to the timing. Two days after attorneys in Palowsky v. Campbell began researching recusals and spoke with a judge about recusals, several district court judges recused from Palowsky v. Cork. Though the judges recused on Oct. 28, 2015, Palowsky claims he did not learn of their recusal until later.
An email in the court record for Palowsky v. Campbell shows that Guice sent a copy of the judges’ recusal from Palowsky v. Cork to Barbera on Nov. 4, 2015, the day before Barbera dismissed Palowsky’s Palowsky v. Campbell lawsuit. Guice’s email to Barbera stated, “I understand that the attached Orders have been filed. These orders now cover all judges.”
“This email does not explain why attorney Guice is forwarding orders from another case to Judge Barbera,” stated Palowsky’s memorandum. “The only reasonable explanation is that there was some communication between Judge Barbera and attorney Guice wherein a discussion of recusals in the Cork case was had. It appears attorney Guice was asked to provide Judge Barbera [with] signed recusals in the Cork case. Obviously, Plaintiff’s counsel was not included in any such communication.”
After he dismissed Palowsky v. Campbell, Barbera set a hearing for the defendants’ sanctions against Palowsky. Defense attorneys Crawford, Guice and Myers filed their legal invoices and affidavits into the court record as evidence supporting their request for sanctions against Palowsky and his attorneys.
At the time, Guice’s attorney fees totaled some $58,000 while Crawford’s attorney fees totaled some $69,000. Barbera said he would not consider any other evidence beyond affidavits and legal bills. That meant no testimony would be allowed.
“Because Judge Barbera ruled on February 2 [2016 that] there would be no discovery related to and no evidence allowed at the hearing on the defendants’ motions for sanctions except for the affidavits from their counsel regarding their fees, attorneys Crawford and Guice had no downside to including substantial charges not related to the stricken paragraphs which were the subject of the sanctions motion,” stated Palowsky’s motion.
At the Nov. 5, 2015 court hearing, Barbera also ordered that the Palowsky v. Campbell record be sealed. Palowsky discovered he could not appeal any of Barbera’s rulings because the court record was sealed, at which time Barbera vacated his ruling to seal the court record.
“Because the case had been dismissed, the only plausible explanation for Judge Barbera to order that the record be sealed was so that the defense attorneys’ claimed expenses would remain private,” stated Palowsky’s memorandum.
Editor’s Note: An online version of this article incorrectly referred to two judges presiding over or being recused fromPalowsky v. Cork, which is a separate lawsuit fromPalowsky v. Campbell. Judge Jerry Barbera is the ad hoc judge in Palowsky v. Campbell, from which Justice Marcus Clark also recused. The Ouachita Citizen regrets the error.