Ultra Vires Claim Dismissed in Thomas Porteous Impeachment Case - Injury & Tort Law - U.S. Fifth Circuit
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Ultra Vires Claim Dismissed in Thomas Porteous Impeachment Case

Political corruption is old hat in Louisiana.

Huey Long. Edwin Edwards. William Jefferson. The string of insurance commissioners that could set up their own cell block while serving corruption sentences. Louisianans practically expect scandals from their elected officials.

Judges, however, are a different class entirely. Say what you will about the state’s politicos, but Louisiana judges tend to provide the state with pearls of civil law wisdom and legal color commentary. Considering Louisiana judges’ relatively tame record, Rhonda Danos probably thought she would have job security when she took a job with Judge Thomas Porteous. She was wrong.

The Fifth Circuit Court of Appeals Judicial Council released a report in 2007 stating that Judge Porteous had engaged in conduct ... which might constitute one or more grounds for impeachment."

Among the charges in the impeachment case, the report alleged that Judge Porteous "filed numerous false statements under oath during his and his wife's bankruptcy", "engaged in fraudulent and deceptive conduct" concerning a debt he owed to a bank, "received gifts and things of value from attorneys who had cases pending before him" and was the subject of financial disclosure statements that "are inaccurate and misleading because they fail to report the gifts and things of value he received from attorneys," according to The Times-Picayune.

The Fifth Circuit Judicial Council referred Judge Porteous for impeachment after the FBI implicated Porteous in connection with Operation Wrinkled Robe, an investigation into corruption at the Gretna, La. courthouse. The House of Representatives impeached Thomas Porteous in March 2010 in the first impeachment case since the Clinton-era; the Senate removed Porteous in December 2010 and barred him from holding public office in the future.

How does this affect Rhonda Danos?

Danos, Judge Porteous's secretary, lost her job after the Fifth Circuit Judicial Council publicly reprimanded him for judicial misconduct and ordered that no new cases be assigned to him for two years or until Congress took final action on impeachment proceedings. During that period, the Council also suspended Judge Porteous's authority to employ staff.

Danos sued the Judicial Council and fifteen of its members, alleging that the Council's action in suspending Judge Porteous's authority to employ staff was unconstitutional and ultra vires. The district court dismissed the suit and the Fifth Circuit affirmed the decision.

Danos raised a constitutional argument that the Council's order "partially disqualified" Judge Porteous from holding his office as an Article III judge. Her theory was that Congress authorized federal district judges to "appoint necessary law clerks and secretaries," and that any suspension of that authority amounts to a partial removal from office. Unfortunately, the Fifth Circuit found that Danos lacked standing to raise the claim because she could not assert Judge Porteous's rights.

Danos also sought a declaratory judgment that the Fifth Circuit Judicial Council's action was ultra vires. The court, however, found that Danos's claim for monetary relief was barred by sovereign immunity and her injunctive relief claim was moot; Danos lacked the necessary injury-in-fact to pursue declaratory relief.

While Rhonda Danos will not get the back pay she hoped to receive through her ultra vires lawsuit, she could see an even bigger windfall if she writes a book about her experiences in Thomas Porteous's office. If there's one thing Louisianans love, it's an inside look at corruption.

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