Supreme Court of Louisiana 

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #004

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 20th day of January, 2017, are as follows:

BY JOHNSON, C.J.: 

2016-O -0921 IN RE: JUDGE DARRYL A. DERBIGNY ORLEANS PARISH CRIMINAL DISTRICT 

COURT STATE OF LOUISIANA

Knoll, J., retired, participated in this decision which was 

argued prior to her retirement.

For the reasons assigned it is ordered that Judge Darryl A. 

Derbigny reimburse the Criminal Court Judicial Expense Fund 

$10,002.58. 

JOHNSON, C.J., additionally concurs and assigns reasons. 

WEIMER, J., concurs in part and dissents in part and 

assigns reasons. 

GUIDRY, J., dissents and assigns reasons. 

CLARK, J., concurs in the result. 

HUGHES, J., dissents with reasons. 

CRICHTON, J., concurs in part and dissents in part and assigns 

reasons. 
1

01/20/17

SUPREME COURT OF LOUISIANA

No. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH 

CRIMINAL DISTRICT COURT, STATE OF LOUISIANA 

JUDICIARY COMMISSION OF LOUISIANA

JOHNSON, Chief Justice*

This matter arises from a recommendation of the Judiciary Commission of 

Louisiana (ACommission@) that Judge Darryl Derbigny be publicly censured, ordered 

to reimburse the Orleans Parish Criminal District Court Judicial Expense Fund 

(AJEF@) the amount of $57,359.96, and ordered to reimburse and pay to the 

Commission $8,150.24 in hard costs. The recommendation stems from Judge 

Derbigny=s participation in the district court=s supplemental insurance program and 

charges that he accepted insurance coverage and benefits beyond those allowed by 

law or available to all other court employees, the premiums for which were paid 

from the JEF. For the following reasons, we conclude the Office of Special Counsel 

(AOSC@) has failed to prove by clear and convincing evidence that Judge Derbigny=s 

participation in the district court=s supplemental insurance program rises to the level 

of sanctionable misconduct under either the Code of Judicial Conduct or Article V, 

Section 25(C) of the Louisiana Constitution. However, we agree with the 

Commission that Judge Derbigny was not entitled to the benefits of any whole life 

insurance policies or the Exec-U-Care program under the plain language of La. R.S. 

13:691. Because Judge Derbigny has already surrendered the cash value of the whole 

life policies to the JEF, we order him to reimburse the JEF $10,002.58, representing 

 * Knoll, J., retired, participated in this decision which was argued prior to her retirement.
2

the out-of-pocket reimbursements paid to Judge Derbigny under the Exec-U-Care 

program. Lastly, we decline the Commission=s request to cast Judge Derbigny with 

hard costs incurred by the Commission. 

FACTS AND PROCEDURAL HISTORY

Judge Derbigny was elected to Section J of Orleans Parish Criminal District 

Court in 2003, and has served continuously since that time. The Commission began 

an investigation in January of 2012 following the broadcast of a series of news 

reports by New Orleans television station WWL-TV. The reports concerned the 

longstanding practice of the judges of the Orleans Parish Criminal District Court 

receiving extra insurance coverage paid for by the Criminal Court=s JEF, beyond the 

standard medical insurance coverage available to all court employees at the 

employee=s own cost.2

The Commission approved the filing of Formal Charge 0345 in March of 

2015, alleging that Judge Derbigny committed ethical misconduct by choosing and 

accepting insurance coverage and program benefits beyond those authorized by law 

or available to all other court employees, the premiums and other costs of which 

were paid with money from the JEF. The charge alleged Judge Derbigny=s 

acceptance and receipt of these benefits constitute supplemental income beyond 

what was permitted by law, and constituted a failure to diligently discharge his 

administrative responsibilities and was a misuse of public funds. The Formal Charge 

further alleged that Judge Derbigny=s acceptance and receipt of these insurance 

coverages and program benefits resulted in multiple negative media reports 

concerning his court during a time when the court was experiencing budget problems 

 2 An audit report issued by the Louisiana Legislative Auditor in November 2012 concluded 

in part that the judges of the Criminal District Court had improperly used public funds to provide 

themselves with supplemental and additional insurance benefits contrary to law.
3

and a negative Legislative Auditor=s report, bringing his court and the judiciary as a 

whole into disrepute. The Formal Charge alleged that Judge Derbigny=s conduct 

violated Canons 1 (a judge shall uphold the integrity and independence of the 

judiciary), 2A (a judge shall respect and comply with the law and shall act at all 

times in a manner that promotes public confidence in the integrity and impartiality 

of the judiciary), 2B (a judge shall not lend the prestige of judicial office to advance 

the private interest of the judge or others), and 3B(1) (a judge shall diligently 

discharge the judge=s administrative responsibilities without bias or prejudice and 

maintain professional competence in judicial administration) of the Code of Judicial 

Conduct. The Formal Charge alleged that Judge Derbigny engaged in willful 

misconduct relating to his official duty, engaged in willful and persistent failure to 

perform his duties, and engaged in persistent and public conduct prejudicial to the 

administration of justice that brought the judicial office into disrepute, in violation 

of La. Const. art. V, ' 25(C).3

A hearing officer was appointed and convened a hearing from September 

21-23, 2015. Following the hearing, the Hearing Officer filed a report with the 

Commission containing proposed findings of fact and conclusions of law. 

Thereafter, the Commission established a briefing schedule and ordered Judge 

Derbigny to appear on February 26, 2016, for questioning by the Commissioners. 

 3 La. Const. art. V, ' 25(C) provides: AOn recommendation of the judiciary commission, 

the supreme court may censure, suspend with or without salary, remove from office, or retire 

involuntarily a judge for willful misconduct relating to his official duty, willful and persistent 

failure to perform his duty, persistent and public conduct prejudicial to the administration of justice 

that brings the judicial office into disrepute, conduct while in office which would constitute a 

felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme 

court may disqualify a judge from exercising any judicial function, without loss of salary, during 

pendency of proceedings in the supreme court. On recommendation of the judiciary commission, 

the supreme court may retire involuntarily a judge for disability that seriously interferes with the 

performance of his duties and that is or is likely to become permanent. The supreme court shall 

make rules implementing this Section and providing for confidentiality and privilege of 

commission proceedings.@
4

We adopt many of the Commission=s Findings of Fact, summarized below. 

From 2006 to 2011,4 the JEF made payments on policies covering Judge 

Derbigny, including three long-term care policies, two life insurance policies, and a 

comprehensive policy covering a variety of specialized insurance categories, 

including term and universal life, critical illness, accidental death and 

dismemberment (AD&D), and cancer, heart, and ICU coverages.5 In addition, the 

 4 Records maintained by Criminal District Court covering the period prior to 2006 were 

destroyed in Hurricane Katrina; therefore, only the 2006 to 2011 time frame is at issue here. 

5 Long-Term Care policies

$ Conseco/Washington National, January 1, 2006 to October 17, 

2011

$ Transamerica GB-5001024, April 29, 2010 to October 4, 2011

$ Transamerica GB-5001042, January 17, 2006 to October 4, 2011

Life Insurance policies

$ Mutual of Omaha, June 1, 2007 to October 3, 2011 

$ Sun Life, March 5, 2010 to October 3, 2011

$ Transamerica OR-166 (term life), January 5, 2009 to November 

29, 2011

$ Transamerica OR-166 (universal life), November 30, 2009 to 

October 25, 2011

Critical Illness policies

$ Transamerica OR-166, January 26, 2006 to November 25, 2008

$ Transamerica OR-166, November 30, 2009 to November 29, 2011

AD&D policies

$ Mutual of Omaha, June 1, 2007 to October 3, 2011

$ Transamerica OR-166, January 26, 2006 to November 29, 2011

Cancer/Wellness/ICU/Heart policy

$ Transamerica OR-166, January 26, 2006 to November 29, 2011
5

package of supplemental insurance policies included AExec-U-Care,@ an insurance 

reimbursement program that reimbursed participants for co-payments or any other 

out-of-pocket health expenses not covered by traditional health insurance or the 

supplemental benefits program. Judge Derbigny held the Exec-U-Care policy from 

January 5, 2006 to April 4, 2012. Two of the life insurance policies held by Judge 

Derbigny, Transamerica and Sun Life, had a cash surrender value. Upon cancellation 

of those policies, Judge Derbigny received checks representing the cash surrender 

value of both policies. He then endorsed both checks over to the JEF.6 The 

undisputed costs of these extra insurance coverages and program benefits relative to 

Judge Derbigny totaled $57,359.96, including $12,727.86 expended for the Exec-UCare program. 

The supplemental insurance program instituted by the judges of the Criminal 

District Court predated Judge Derbigny by at least twenty, and possibly thirty 

years. Judge James McKay, currently a judge of the Fourth Circuit Court of Appeal, 

was a judge at Criminal District Court from 1982 to approximately 1997. Judge 

McKay testified that the program began sometime in the late 1980's or early 1990's. 

Although some parts of the supplemental insurance program have changed since the 

inception of the program, key elements have remained the same, including but not 

limited to the use of the JEF and the availability of policies not offered to other court 

employees. In 1994, the Commission conducted an investigation of Criminal 

District Court=s supplemental insurance program. In June 1994, then-Special 

 

Hospital Select policy

$ Transamerica OR-166, January 26, 2006 to November 29, 2011

6 The cash surrender value of the Transamerica Life policy was $97.39; 

the cash surrender value of the Sun Life policy was $6,314.76.
6

Counsel, Steven Scheckman, sent a subpoena requesting documents related to the 

program to the judges of Criminal District Court. He also requested a response about 

the legality of the program from the judges of Criminal District Court en banc. 

Robert Murphy, who is now a judge of the Fifth Circuit Court of Appeal, represented 

the judges of Criminal District Court in connection with the Commission=s 

investigation of the supplemental insurance program. Mr. Murphy gave the judges 

Apositive advice that what they were trying to accomplish was appropriate@ and that 

Athey were not going to run afoul of the Judiciary Commission for doing what they 

wanted to do.@

At the end of the Commission=s deliberations on the matter, Mr. Scheckman 

was directed to write a letter to Judge Jerome Winsberg, then the chief judge of 

Criminal District Court. Mr. Murphy, as the judges= attorney, was provided a copy 

of the letter. The August 25, 1994, letter stated that the Commission Adetermined 

that there was no judicial misconduct involving the purchase of insurance for 

judges.Y@ The letter further expressed the Commission=s concern that the practice of 

purchasing additional insurance Amay violate the original intent of the judicial parity 

statute, R.S. 13:691Y,@ and stated that the matter would be referred to the Judicial 

Council for further deliberation. The letter also noted an issue of Aserious@ concern 

to the Commission - the existence of a cash surrender value for some of the policies. 

To address this concern, the Commission requested written verification the judges 

had eliminated policies with a cash surrender value. 

The minutes of an August 1, 1994 en banc meeting of the Criminal Court 

judges reveal the following motions were made, seconded, and passed unanimously: 

that the cash value of any policy be directed to the JEF, and that all policies be 

transferred to the JEF as owner. On October 6, 1994, Mr. Scheckman wrote Mr. 

Murphy thanking him for his Arecent submissions@ and stating further that he would 
7

now be closing out his file. According to Mr. Scheckman=s testimony in the instant 

matter, the Commission would have made the decision to close out the file and thus 

it was reasonable to conclude that the documents sent by Mr. Murphy had satisfied 

the Commission=s concerns.

Regarding the Commission=s referral to the Judicial Council, Mr. Scheckman 

testified that the Commission Adidn=t consider it an ethical violation, Y. It was a 

legitimate policy issue. Y And they wanted a resolution to that by the Judicial 

Council, which is, in effect, the policymaking arm of the Supreme Court .Y@ Based 

on his own personal knowledge, Mr. Scheckman testified that, despite the 

Commission=s referral, the Council did not address the policy questions posed. Dr. 

Hugh Collins, the former Judicial Administrator of the Supreme Court, could not 

remember if the Commission referred the issue to the Judicial Council. Other 

witnesses also did not know whether the Judicial Council had taken any action, 

including Robert Murphy, Judge Winsberg, Judge Calvin Johnson, and Judge 

McKay. Judge McKay stated that, had the Judicial Council acted on the issue, Athe 

whole judiciary would have been made aware.@

Newly-elected judges at Criminal District Court were enrolled in the 

supplemental benefits program by the Judicial Administrator of Criminal District 

Court. Robert Kazik, the Judicial Administrator since 2006, testified that when the 

new judges Ashowed up, we gave them a packet and said fill this out, it=s your newhire paperwork Y just like any other employee.@ Mr. Kazik=s predecessor, Elizabeth 

Stogner, testified that she would enroll the judges in the supplemental benefits 

program, including dental, vision, life insurance, and Exec-U-Care. The Hearing 

Officer asked Ms. Stogner whether all of the judges availed themselves of all 

available policies. Ms. Stogner replied that the judges signed up for Aall policies@

unless a particular judge was not eligible for a certain policy due to health reasons.
8

Judge Derbigny recalled signing up for insurance benefits when he joined the 

court in 2003, but he characterized it as perfunctory. He stated he was summoned to 

the Judicial Administrator=s Office:

where I was presented, in my vague recollection, with a 

packet of materials, that this is B sign here, sign there, these 

are all part of your benefits that you are the beneficiary as 

a result of your election, congratulations, sign off on the 

dotted line and go to work. Y It just seemed to me to be 

part of the process of signing on as a new employee of the 

court. 

 

After 2006, Judge Derbigny recalled being summoned to the Judicial 

Administrator=s Office to sign paperwork regarding additional policies. He 

acknowledged that some of the supplemental insurance policies provided duplicative 

and overlapping coverage, but explained that once the situation was realized by the 

Judicial Administrator the judges took action and eliminated the duplicative policies. 

During his appearance before the Commission, Judge Derbigny reiterated that he 

completely relied on others to vet the legality and ethical propriety of the 

supplemental insurance benefits, including his predecessors in office, his colleagues, 

the insurance committee, and the chief judge.

In June 2011, the court received a public records request regarding the 

supplemental benefits program from a reporter at WWL-TV. Upon receiving the 

request, Judge Julian Parker, then the chief judge, requested that the judges retain 

counsel to examine the legality of the program and to respond to the public records 

request. The judges agreed and retained Mr. Normand Pizza. Although Mr. Pizza 

ultimately concluded the program was legal, the judges collectively decided to 

cancel their policies and to suspend the filing of any claims in the Exec-U-Care 

program. Judge Derbigny=s cancellation letter, dated November 8, 2011, was 
9

prepared by the court=s human relations specialist and signed by Judge Derbigny.5

The Commission found that Judge Derbigny=s acceptance of this large number 

of supplemental benefits at no cost to himself was ethically improper and constituted 

a violation of the Code of Judicial Conduct and the Louisiana Constitution. 

Specifically, the Commission found that Judge Derbigny violated Canons 1, 2A, and 

3B(1) of the Code of Judicial Conduct.6 The Commission further concluded that 

Judge Derbigny engaged in persistent and public conduct prejudicial to the 

administration of justice that brought the judicial office into disrepute, in violation 

of La. Const. art. V, ' 25(C). Judge Derbigny=s participation in the supplemental 

benefits program over a period of at least five years diverted thousands of dollars 

from the administration of justice, and generated negative publicity for the judicial 

office. However, the Commission also noted his conduct was significantly mitigated 

by the inaction of the Judicial Council and others who failed to properly advise the 

Criminal District Court judges about the legality of the supplemental benefits 

program. Because there was no evidence presented that Judge Derbigny engaged in 

any intentional or willful conduct, the Commission did not find that he engaged in 

willful misconduct relating to his official duty, or engaged in willful and persistent 

failure to perform his duties. Thus the Commission recommended that Judge 

Derbigny be publicly censured, ordered to reimburse JEF the amount of $57,359.96,7

 5 Judge Derbigny did not cancel Exec-U-Care until April 2012; however, the Commission 

made no finding that Judge Derbigny made any claim under this program after November 2011.

6 The Commission did not find a violation of Canon 2B, as there was no evidence presented 

that Judge Derbigny used the prestige of his judicial office to receive supplemental benefits. 

7 The total amount expended by the JEF on supplemental benefits for Judge Derbigny was 

$57,359.96, broken down as follows: 

$ Conseco/Washington National: $5,566.29

$ Transamerica GB-5001024: $2,821.72

$ Transamerica GB-5001042: $10,222.36

$ Mutual of Omaha: $1,656.00

$ Sun Life: $8,277.57

$ Transamerica OR-166: $16,088.16
10

and ordered to reimburse and pay to the Commission $8,150.24 in hard costs. 

DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary 

proceedings by La. Const. art. V, ' 25(C). This court makes determinations of fact 

based on the evidence in the record and is not bound by, nor required to give any 

weight to, the findings and recommendations of the Judiciary Commission. In re 

Quirk, 97-1143 (La. 12/12/97), 705 So. 2d 172, 176. In addition to the substantive 

grounds for disciplinary action listed in the Louisiana Constitution, this court, in 

accordance with its supervisory authority over all lower courts, has adopted the Code 

of Judicial Conduct, which is binding on all judges and violations of the Canons 

contained therein may serve as a basis for the disciplinary action provided for by La. 

Const. art. V, ' 25(C). Id. The standard of proof in judicial discipline cases is the 

clear and convincing standard. In re Chaisson, 549 So. 2d 259, 263 (La. 1989). 

Under this standard, the level of proof must be more than a mere preponderance of 

the evidence but less than beyond a reasonable doubt. In re Huckaby, 95-0041 (La. 

5/22/95), 656 So. 2d 292, 296. 

Having reviewed the record, we conclude the OSC failed to prove by clear 

and convincing evidence that Judge Derbigny=s participation in the court=s 

supplemental insurance program rose to the level of sanctionable misconduct under 

either the Code of Judicial Conduct or Article V, ' 25(C) of the Louisiana 

Constitution. 

The Commission found the use of JEF funds to purchase long-term care, 

critical illness, accidental death and dismemberment, cancer/wellness/ICU/heart, 

 

$ Exec-U-Care: $12,727.86, which consisted of $10,002.58 in out-of-pocket 

reimbursements to Judge Derbigny, $1,625.00 in premiums, and $1,100.28 in 

administrative fees.
11

and hospital select portion of the court=s supplemental benefits program was 

authorized by law and not in violation of La. R.S. 13:691, 42:851, or 13:1381.4. La. 

R.S. 13:691, the judicial parity statute, provides that a judge shall not receive Aany 

additional salary, compensation, emolument, or benefit@ for his services as a judge, 

Y except A(3) Payment of premiums for health, medical, dental, and hospitalization 

insurance programs contributions to which shall be at the same rate as those paid by 

other state employees.@ The statute does not limit a judge to receipt of benefits 

offered to state employees. Rather, a judge may receive a payment of premiums for 

health, medical, dental, and hospitalization insurance programs, as long those 

payments are at the same rate as those paid by other state employees, without 

violating the statute. The Commission recognized, however, that La. R.S. 13:691 

refers only to the health, medical, dental, and hospitalization portions of the 

supplemental insurance program. Thus, the Commission noted the statute does not 

explicitly authorize payments relative to life insurance or insurance reimbursement 

programs such as Exec-U-Care. 

Additionally, the Commission concluded the supplemental benefits program 

did not violate La. R.S. 42:851.8 That statute would require the court to seek approval 

 8 La. R.S. 42:851 provides in pertinent part as follows:

A. The state of Louisiana, through the Office of Group Benefits and each of its 

governmental and administrative subdivisions, departments, or agencies of the executive, 

legislative, or judicial branches, Y are authorized to:

(1) Procure private contracts of insurance covering their respective employees, officials, 

and department heads, or any class or classes thereof, and the dependents of such 

employees, officials, or department heads under a policy or policies of group health, 

accident, accidental death and dismemberment, and hospital, surgical, or medical expense 

benefits. Y

B. Each such private contract or self-funded program, the premiums of which are paid in 

whole or in part with state funds, shall be approved by the Office of Group Benefits, except 

that any city or parish school board may enter into such private contract or self-funded 

program without approval. The employee or retiree eligibility provided in such private 

contract or self-funded program must be identical to the eligibility provided in the Office 

of Group Benefits programs.
12

from the Office of Group Benefits to contract for these supplemental benefits, but 

only if premiums are paid Ain whole or in part with state funds.@ Here, the premiums 

for the supplemental benefits program were paid by the JEF. These funds are not 

state funds within the meaning of La. R.S. 42:851. See Dejoie v. Medley, 08-2223 

(La. 5/5/09), 9 So. 3d 826. 

The Commission also considered La. R.S. 13:1381.4, the statute authorizing 

the JEF, which prohibits the payment of salary from the fund to any judges of the 

court.9 However, the Commission found that because Section (D) of the statute uses 

the specific term Asalary@ instead of the more general term Acompensation,@ it does 

not refer to the long-term care, critical illness, AD&D, cancer/wellness/ICU, or 

hospital select portions of the supplemental benefits program. 

 

9 La. R.S. 13:1381.4 provides:

A. (1) In all criminal cases over which the Criminal District Court for Orleans Parish has 

original, appellate, supervisory, or concurrent jurisdiction, including traffic violations other 

than parking, there shall be taxed as costs against every defendant who is convicted after 

trial or plea of guilty or nolo contendere or who forfeits his bond the sum of five dollars, 

which shall be in addition to all other fines, costs, or forfeitures lawfully imposed and 

which shall be transmitted to the judicial administrator of the Criminal District Court for 

Orleans Parish for further disposition in accordance herewith.

(2) In addition to all other fines, costs, or forfeitures lawfully imposed by this Section or 

any other provision, the court may impose an additional cost against any defendant who 

has been finally convicted of a misdemeanor, excluding traffic violations, or a felony. The 

additional costs authorized in this Paragraph shall not exceed five hundred dollars in the 

case of a misdemeanor nor exceed two thousand five hundred dollars in the case of a felony. 

All such sums collected shall be transmitted to the judicial administrator for further 

disposition in accordance herewith.

B. The judicial administrator of the Criminal District Court for Orleans Parish shall place 

all sums collected or received under this Section in a separate account to be designated as 

the judicial expense fund for the Criminal District Court for Orleans Parish. The judges 

of the court shall cause to be conducted annually an audit of the fund and the books and 

accounts relating thereto and shall file the same with the office of the legislative auditor 

where it shall be available for public inspection.

C. The judicial expense fund is established and may be used for any purpose connected 

with, incidental to, or related to the proper administration or function of the court or the 

office of the judges thereof and is in addition to any and all other funds, salaries, expenses, 

or other monies that are provided, authorized, or established by law.

D. No salary shall be paid from the judicial expense fund to any judges of the court.
13

Despite these findings, the Commission found the OSC had proven by clear 

and convincing evidence that respondent violated Canons 1, 2A, and 3B(1). 

Although we agree with the Commission=s interpretation and application of the 

relevant statutes relative to the legal propriety of the supplemental insurance benefits 

under review in this case, we disagree with the Commission=s ultimate conclusion 

that the OSC proved a violation of the Code of Judicial Conduct by clear and 

convincing evidence. 

Canon 1, entitled AA Judge Should Uphold the Integrity and Independence of 

the Judiciary,@ provides:

An independent and honorable judiciary is indispensable to justice in 

our society. A judge should participate in establishing, maintaining, and 

enforcing, and should personally observe, high standards of conduct so 

that the integrity and independence of the judiciary may be preserved. 

The provisions of this Code should be construed and applied to further 

that objective. As a necessary corollary, the judge must be protected in 

the exercise of judicial independence. 

Part A of Canon 2 of the Code entitled, AA Judge Should Avoid Impropriety and the 

Appearance of Impropriety in All Activities,@ states:

A judge should respect and comply with the law and should act at all 

times in a manner that promotes public confidence in the integrity and 

impartiality of the judiciary.

Part B of Canon 3 of the Code, entitled AAdministrative Responsibilities,@ provides 

in pertinent part in Paragraph (1):

A judge shall diligently discharge the judge=s administrative 

responsibilities without bias or prejudice and maintain professional 

competence in judicial administrationY. 

We find the OSC failed to prove that Judge Derbigny did not maintain professional 

competence in the administration of his court and did not uphold the integrity of his 

court under the facts of this case. 

First, although the Commission cited to the Alarge number@ of supplemental 

benefits accepted by Judge Derbigny, there is no prohibition or limitation in La. R.S. 
14

13:691(B) in either the number of policies or the costs of the supplemental insurance 

program, as long as those polices otherwise comply with the law. There is no 

showing by the OSC in this record that the insurance premiums attributed to Judge 

Derbigny exceeded those of any other judges or state employees. Similarly, there 

was nothing in the expense reports provided to the judges that would have caused 

Judge Derbigny or others to question the benefits offered. Further, the record 

establishes that once the duplicative coverages were pointed out to him, Judge 

Derbigny took appropriate action to cancel the duplicative policies.

Additionally, while we agree with the Commission that the life insurance 

policies and expense reimbursement policies, such as Exec-U-Care, are not 

specifically referenced in La. R.S. 13:691, we do not find clear and convincing 

evidence that Judge Derbigny failed to maintain professional competence in the 

administration of the court with regard to these policies. As the Commission and the 

Hearing Officer reiterated, the supplemental benefits program at issue preceded 

Judge Derbigny=s election to the court by at least twenty years, and the history of 

that program was muddled at best. Based on the record and testimony, it is apparent 

that a multitude of elected judges have benefitted from these same supplemental 

benefits over perhaps thirty years. There was no evidence that Judge Derbigny knew 

of potential irregularities or participated in the procurement of the policies. Pursuant 

to the 1994 letter from the Special Counsel to the judges of the court, life insurance 

policies with cash surrender values should not have been obtained by the court, but 

the Commission agreed Judge Derbigny would not have been aware of the 

Commission=s prior admonition to the court. Instead, the record supports the 

Commission=s finding that new judges were presented with information about the 

supplemental benefits, including these life insurance policies, along with the regular 

group benefits, and that this presentation gave the appearance that the supplemental 
15

benefits were a part of an overall benefits package given to every judge, and 

otherwise gave the indication to Judge Derbigny that the benefits were legal and 

fully vetted by his colleagues and predecessors. 

With regard to the term life insurance policies and the Exec-U-Care program, 

the Commission cited testimony in the record that the supplemental insurance 

program it had investigated in 1994 was substantially similar to the supplemental 

insurance program in which Judge Derbigny participated between 2006 and 2011. 

Although the OSC argues the record is not clear that these policies were included in 

the program in effect in 1994, we find sufficient evidence in the record to conclude 

otherwise. Bryan Wagner, an independent insurance agent, testified that he sold 

numerous insurance policies to the Criminal District Court judges beginning in the 

early 1990's, including group life insurance policies. He also recalled selling the 

judges the Exec-U-Care program beginning in 2006, although he could not recall 

whether other medical reimbursement polices, such as Exec-U-Care, were in effect 

prior to 2006. Robert Kazik, the Judicial Administrator of Criminal District Court 

since 2006, also testified regarding his knowledge of the supplemental benefits 

program. Mr. Kazik has been employed at Criminal District Court for more than 26 

years and testified the supplemental policies, including an Exec-U-Care type policy, 

came into existence in the early 1990's. Elizabeth Stogner, Judicial Administrator of 

the Criminal District Court from 2000 to 2006, testified she enrolled the judges in 

these policies, including Exec-U-Care, during her term as Judicial Administrator, 

although she could not recall when the court approved the supplemental policies. 

Former Criminal District Court Judge McKay testified the supplemental insurance 

program went into effect in the late 1980's or early 1990's and Exec-U-Care was part 

of the supplemental insurance program in 1994 (when the program was investigated 

by the Judiciary Commission). Judge Camille Buras, elected as a Criminal District 
16

Court judge in 1998, testified she was aware the judges before her had the same 

supplemental benefits, including Exec-U-Care. Finally, Steve Scheckman, Special 

Counsel for the Judiciary Commission from 1994 to 2008, testified that the 

supplemental insurance program in 1994 included substantially the same policies 

offered by the program under review in this matter. He further testified the benefits 

program in 1994 included the same type of expense reimbursement policy providing 

the same coverage as the Exec-U-Care policy, although he was not sure if it was 

called AExec-U-Care.@

The Judiciary Commission in 1994 determined there was no judicial 

misconduct relative to the payment for these supplemental benefits for the judges. 

The only differentiation was with regard to life insurance policies with cash 

surrender values. We are hard-pressed to discern the reasoning behind the 

Commission=s current reversal of its view in 1994 that the judges had not engaged 

in any judicial misconduct by participating in the supplemental benefits program, 

but that Judge Derbigny, who was elected to the bench in 2003, has committed 

judicial misconduct by participating in substantially the same supplemental benefits 

program. There is no dispute that JEF funds are no longer used to pay for the judges=

supplemental insurance policies. And, going forward, our ruling makes clear that a 

judge=s acceptance of these particular benefits would not be authorized by La. R.S. 

13:691. However, based on the particular facts of this case, we decline to find Judge 

Derbigny=s acceptance of these benefits in the past to be an ethical violation. The 

record clearly establishes that the supplemental benefits program investigated in 

1994 included both life insurance policies and a medical expense reimbursement 

program, such as the Exec-U-Care program. The OSC found no misconduct relative 

to term life insurance policies or the Exec-U-Care benefits, and singled out only life 

insurance polices with cash surrender values as an item of concern. Judge Derbigny=s 
17

actions, viewed in light of the OSC=s prior investigation and findings, do not 

constitute ethical misconduct.

Furthermore, although a judge cannot simply rely on others, such as his 

judicial predecessors or his administrative staff, to have vetted the insurance policies 

he was offered, we do not find that Judge Derbigny Awholly abdicated his ethical 

responsibilities@ with regard to the supplemental insurance benefits at issue. The 

Commission found that Judge Derbigny violated the Code of Judicial Conduct and 

the Louisiana Constitution by his Aover reliance@ on his predecessors and court 

administrative personal. However, the record contains no indication that Judge 

Derbigny was ever put on notice prior to 2011 that the supplemental benefits 

program was legally or ethically improper. The program that Judge Derbigny joined 

in 2003 had been in place for at least 20 years. Even if he had made his own inquiry 

into the propriety of the criminal court=s supplemental insurance benefits program, 

he would have found no indication of disapproval of the program by the Commission 

(other than the cash value policies), the Judicial Council, or any other authority. The 

record shows that following its investigation of the program in 1994, neither the 

OSC nor the Commission addressed the issue of the criminal court=s supplemental 

insurance program again until 2011, when it commenced the instant proceedings. 

The OSC has not made a showing that Judge Derbigny knew or should have known 

that his participation in the criminal court=s supplemental benefits program was not 

both legal and ethically permissible. The Commission agreed with Judge Derbigny 

that his level of culpability in this matter is greatly diminished by his lack of 

guidance from the judicial branch and by the actions of his predecessors. Under the 

particular circumstances of this case, especially the scope and convoluted history of 

the criminal court=s supplemental benefits program B a history the Commission itself

recognized as Acomplicated,@ along with the Commission=s shifting viewpoints on 
18

the propriety of parts of the program, we conclude the OSC failed to show that Judge 

Derbigny=s conduct rose to the level of a violation of the Code of Judicial Conduct 

or that he violated La. Const. art. V, ' 25(C) by engaging in persistent and public 

conduct prejudicial to the administration of justice that brings the judicial office into 

disrepute.

Nevertheless, while we do not find that Judge Derbigny=s conduct rose to the 

level of a violation of the Code of Judicial Conduct, we ultimately agree with the 

Commission that La. R.S. 13:691(B) by its very language does not reference life 

insurance policies or the type of reimbursement program offered under the Exec-UCare program. While Judge Derbigny argues that the Exec-U-Care program was a 

medical benefits program, we agree with the Commission that the program was not 

Ainsurance,@ but was instead a program to reimburse participants for out-of-pocket 

medical and dental expenses. Accordingly, we order Judge Derbigny to reimburse 

the JEF $10,002.58 in out-of-pocket reimbursements to Judge Derbigny.10 Because 

the Commission in 1994 found no judicial misconduct for participating in such a 

program, we decline to cast Judge Derbigny for the premiums and administrative 

fees paid to Exec-U-Care.

CONCLUSION

In sum, we conclude the Office of Special Counsel has failed to prove by clear 

and convincing evidence that Judge Derbigny=s participation in the criminal district 

court=s supplemental insurance program rose to the level of sanctionable misconduct 

under either the Code of Judicial Conduct or Article V, ' 25(C) of the Louisiana 

Constitution. However, we find the plain language of La. R.S. 13:691 does not 

reference either life insurance or a reimbursement program as provided by the 

 10 See In re Granier, 04-3031 (La. 6/29/05), 906 So. 2d 417, 420.
19

Exec-U-Care policy, and thus such policies were not authorized by law. Judge 

Derbigny has surrendered to the JEF the cash value of the whole life insurance 

policies. Accordingly, we order him to reimburse the JEF $10,002.58, representing 

the out-of-pocket reimbursements paid to Judge Derbigny under the Exec-U-Care 

program. Because we find no sanctionable misconduct on the part of Judge 

Derbigny, we decline the Commission=s request to cast Judge Derbigny with hard 

costs incurred by the Commission.

DECREE

For the reasons assigned, it is ordered that Judge Darryl A. Derbigny 

reimburse the Criminal Court Judicial Expense Fund $10,002.58.
01/20/17

SUPREME COURT OF LOUISIANA

No. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH 

CRIMINAL DISTRICT COURT, STATE OF LOUISIANA 

JUDICIARY COMMISSION OF LOUISIANA

JOHNSON, Chief Justice, additionally concurs

I write separately in this matter to reiterate that our decision necessarily takes 

into account the convoluted and established history of the supplemental benefits 

program in Criminal District Court. In finding Judge Derbigny committed ethical 

misconduct, one of my dissenting colleagues fails to appreciate the relevance of this 

history by discounting the standard and accepted practice of the court providing such 

benefits for its judges. 

As set forth in detail in the majority opinion, this longstanding supplemental 

benefits program existed for thirty years, long before Judge Derbigny was elected. 

The Judiciary Commission investigated the judges= participation in this program in 

1994, following which the program was not declared illegal or improper and the 

Commission declined to impose any discipline. Despite these facts, one of the 

dissenters declares that Judge Derbigny Amust now account for his own role@ in the 

system and suggests Judge Derbigny should be sanctioned. In my view, to demonize 

this one particular judge when scores of other judges have participated and benefitted 

from the same program over thirty years is patently unfair. 

For the reasons explained in the majority program, I find Judge Derbigny=s 

actions did not rise to the level of sanctionable misconduct. 
01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY,

ORLEANS PARISH CRIMINAL DISTRICT COURT,

STATE OF LOUISIANA

JUDICIARY COMMISSION OF LOUISIANA

WEIMER, J., concurring in part and dissenting in part.

This entire matter is disappointing on many levelsBbeginning with the 

implementation of the supplemental benefits program, through the Judiciary 

Commission1 evaluation of the judges= participation in the program in 1994, and 

ending with the lack of contemporary follow-up by the then Judicial Council2 at the 

time the program was initially uncovered. The presiding hearing officer, retired 

Judge Ward Fontenot, referred to this matter as having a Asomewhat troubling@

history. The current Judiciary Commission described the program as creating the 

public impression of the Apilfering [of] court funds@ at the expense of the public. 

Judiciary Commission=s Findings of Fact, Conclusions of Law, and 

Recommendation of Discipline, Case No. 0345, p. 38.

 1 The [Judiciary] Commission consists of nine members Y: one court of appeal 

judge and two district judges Y; two attorneys admitted to the practice of law for at 

least ten years and one attorney admitted to the practice of law for at least three but 

not more than ten years Y; and three citizens, not lawyers, judges or public officials 

Y. 

http://www.lasc.org/la_judicial_entities/judiciary_commission.asp (last visited 12/12/16). Under 

La. Const. art. V, ' 25(C), the Judiciary Commission initiates procedures for judicial discipline by 

recommendation to the Louisiana Supreme Court. In a typical case, the Judiciary Commission 

makes such recommendations after initiating investigations, hearings, and making its own factual 

and legal determinations. See generally JCL Rules VI, VII, VIII, and XI(C)(3)(b).

2

 A[T]he Judicial Council serves as a research arm for the Supreme Court. It often acts as a 

resource center where ideas for simplifying and expediting judicial procedures and/or correcting 

shortcomings in the system are studied.@ 

http://www.lasc.org/la_judicial_entities/judicial_council.asp (last visited 12/12/16).
2

Public officials are elected to serve, not to be served by taking advantage of 

the public fisc. Those who created the so-called employee benefits system for the 

Orleans Parish Criminal Court are not presently before this court. However, Judge 

Derbigny, who was lured into the system as a new judge, must now account for his 

own role. Whether others who may or may not be more culpable than Judge 

Derbigny will be brought before this court is for the Judiciary Commission to decide. 

See La. Const. art. V, ' 25(C); see also Small v. Guste, 383 So.2d 1011, 1013 (La. 

1980) (ruling that this court=s disciplinary authority over judges may be initiated 

Asolely by exercise of this Court=s exclusive original jurisdiction on Judiciary 

Commission recommendation.@). Obviously, each matter must be decided on its 

own facts.

Judge Derbigny=s role, initially, like that of virtually every employee new to 

a job, involved the mere signing of benefits forms presented to him. In his initial 

role, Judge Derbigny no doubt perfunctorily relied on those who preceded him and 

those responsible for administration of the benefits system. Robert Kazik, the 

Judicial Administrator since 2006, testified when the new judges Ashowed up, we 

gave them a packet and said fill this out, it=s your new-hire paperwork Y just like any 

other employee.@ Mr. Kazik=s predecessor, Elizabeth Stogner, testified she would 

enroll the judges in the supplemental benefits program, including dental, vision, life 

insurance, and Exec-U-Care. When asked whether all of the judges availed 

themselves of all available policies, Ms. Stogner replied that the judges signed up 

for Aall policies@ unless a particular judge was not eligible for a certain policy for 

health reasons.

However, Judge Derbigny continued to add and accept supplemental benefits 

throughout his tenure on the bench until 2011, which was proximate in time to an 
3

audit of the benefits system conducted by the Louisiana Legislative Auditor. A 

majority of this court now finds that Judge Derbigny committed no judicial 

misconduct in his continued utilization of the benefits system. I respectfully 

disagree.

There were several types of insurance policies that Judge Derbigny obtained. 

Some were whole life insurance policies, with a cash surrender value, which were 

essentially the same policies as those investigated by the Judiciary Commission in 

1994 and found at that time to have been inconsistent with La. R.S. 13:691. The 

majority does not find misconduct in Judge Derbigny=s continued procurement of 

the whole life policies, essentially because the Judiciary Commission found no 

judicial misconduct in 1994 for procuring whole life policies. At the time, the 

Judiciary Commission explained that, while it found no judicial misconduct, the 

practice of buying whole life insurance policies Amay violate the original intent of 

the judicial salary parity statute, La. R.S. 13:691.@ See August 25, 1994 letter of 

the Office of Special Counsel for the Judiciary Commission (p. 3971 of the record 

of these proceedings).

I accept Judge Derbigny=s representations that he was unaware of the Judiciary 

Commission=s opinion from 1994. However, his unawareness of the 1994 opinion 

does not relieve Judge Derbigny from knowing the law. Citizens without training 

in the law are not excused from not knowing the law. See La. C.C. art. 5 (ANo one 

may avail himself of ignorance of the law.@). Judge Derbigny is a judicial officer 

and has extensive training in the law. Other court employees who were not judges 

could not obtain the whole life insurance policies on the same favorable payment 

terms as did Judge Derbigny. Moreover, Judge Derbigny could have eventually 

personally benefitted from policies paid for with public funds when the policies 
4

reached a maturity date or were surrendered. His conduct in obtaining the whole 

life insurance policies, therefore, violated La. R.S. 13:691(A) and (B)(3).3

 Such a 

violation of statutory law by a judge, in the course of his official duties, amounts to 

ethical misconduct. See In re Lemoine, 96-2116, p. 2 (La. 4/4/97), 692 So.2d 358, 

359 (on reh=g).4

A similar analysis applies to the other so-called employee benefits at issue, 

inasmuch as they were not authorized by statute. The majority of this court 

concedes that the Exec-U-Care program is not insurance authorized by La. R.S. 

13:691 and, consequently, the majority Aorder[s] Judge Derbigny to reimburse the 

JEF $10,002.58 in out-of-pocket reimbursements to Judge Derbigny.@ In re 

Derbigny, 16-0921, slip op. at 17 (La. 12/___/16).

As the Judiciary Commission correctly indicates, the Exec-U-Care product Ais 

not insurance. Y Under the Exec-U-Care program, Y the Criminal Court [Judicial 

Expense Fund] paid not only for premiums on Judge Derbigny=s behalf but also paid 

for the actual amounts Judge Derbigny was reimbursed@ for out-of-pocket expenses 

such as medical co-pays. Judiciary Commission=s Findings of Fact, Conclusions of 

Law, and Recommendation of Discipline, Case No. 0345, p. 31 n.42. True 

insurance involves a risk to the underwriter, but this was nothing more than a 

 3

 The referenced provisions of La. R.S. 13:691(A) and (B)(3) prohibit judges from receiving Aany 

additional salary, compensation, emolument, or benefit@ not authorized by law, and prohibit judges 

from benefitting from any A[p]ayment of premiums for Y insurance programs@ unless the payment 

is Aat the same rate as those paid by other state employees.@

4

 In In re Lemoine, 96-2116 at 2, 692 So.2d at 359, this court ruled that a failure to recuse, when 

statutory grounds exist, was sanctionable misconduct. The court explained:

A judge=s clear violation of a statute is misconduct, because it is a judge 

violating the law, and such disobedience or disrespect for the law, which his very 

oath commands that he support, constitutes Awillful misconduct relating to his 

official duty,@ under Art. V, ' 25(C) of the Constitution. Such a statutory violation 

would also constitute an ethical breach under Canon 2 of the Code of Judicial 

Conduct.
5

ruseBmasquerading as insuranceBto reimburse the judges= out-of-pocket expenses 

not covered by the judges= true insurance coverages. Furthermore, because the 

Exec-U-Care program charged Aadministrative fees@ for paying Judge Derbigny=s 

out-of-pocket expenses, the Judicial Expense Fund was actually paying more than if 

it had paid Judge Derbigny=s expenses directly. This program was not available to 

other court employees who were not judges.

Given the manner in which La. R.S. 13:691 addresses benefits to judges, it 

has been described in this litigation as Athe judicial salary parity statute.@5

 In that 

regard, the statute prohibits judges from receiving benefits not made available to 

other employees and requires judges to pay the same as non-judges for the benefits 

judges receive. See La. R.S. 13:691(A) and (B)(3). The Exec-U-Care program 

violated both principles. Because Judge Derbigny violated statutory law in 

accessing the Exec-U-Care program, he has committed ethical misconduct. See In 

re Lemoine, 96-2116 at 2, 692 So.2d at 359 (on rehg).

In my view, the determination that Judge Derbigny violated statutory law,6

but did not engage in ethical misconduct departs from the well-established 

proposition that a judge=s significant violation of statutory law in the course of his 

official duties amounts to ethical misconduct (see id.), as well as the jurisdictional 

 5

 The statute could also be referred to as a limitation on judicial compensation and benefits, in 

my view.

6

 As stated by the majority, Ait is clear that acceptance of these particular benefits is not authorized 

by La. R.S. 13:691.@ In re Derbigny, 16-0921, slip op. at 16. Although the majority limits this 

finding Agoing forward,@ the language of the statute has not changed. Further, in a 1994 letter, the 

OSC advised that the Judiciary Commission Aexpressed its serious concern@ that the purchase of 

any insurance through the judicial expense fund Amay violate the original intent of the judicial 

salary parity statute, R.S. 13:691.@ (Emphasis added.) The letter advised that life insurance with 

Acash surrender values@ be Aeliminated.@ Thus, the Aserious concern@ raised by the Judiciary 

Commission was not limited to cash surrender policies. See record of these proceedings at p. 

3971.
6

principles enshrined in the Louisiana Constitution. This matter is solely before this 

court because the Judiciary Commission has recommended that Judge Derbigny be 

disciplined for misconduct. See La. Const. art. V, ' 25(C) (AOn recommendation 

of the judiciary commission, the supreme court may censure, suspend Y, remove 

from office, or retire involuntarily a judge for willful misconduct relating to his 

official duty, willful and persistent failure to perform his duty, persistent and public 

conduct prejudicial to the administration of justice Y .@). Once there is a finding of 

no ethical misconduct, in my view, there is no jurisdiction under La. Const. art. V, '

25(C), and the court is powerless to order reimbursement to the Judicial Expense 

Fund. See Id.; compare In re Granier, 04-3031, p. 4 (La. 6/29/05), 906 So.2d 417, 

420. Cited by the majority to support the proposition that this court may order 

reimbursement,7 in In re Granier this court publicly censured a judge for ethical 

misconduct and Afurther ordered that [the] Judge ... reimburse the Judicial Expense 

Fund of the 29th Judicial District Court $2,321.78.@ In re Granier, 04-3031 at 4, 

906 So.2d at 420 (emphasis added). Stated simply, in the absence of ethical

misconduct, there can be no order of reimbursement because, in the absence of 

ethical violation, this court lacks jurisdiction to impose an order of restitution. Yet, 

full reimbursement to the public fisc is absolutely necessary in this matter.

Ordering reimbursement for the sake of making the public fisc whole is only 

one reason why it is so important to properly evaluate ethical misconduct on the part 

of Judge Derbigny. It is well-established that the primary purpose of the Code of 

Judicial Conduct is the protection of the public rather than to simply discipline 

judges. In re Best, 15-2096, p. 15 (La. 6/29/16), 195 So.3d 460, 468 (citing In re 

 7

 See In re Derbigny, 16-0921, slip op. at 17 n.10.
7

Marullo, 96-2222, p. 6 (La. 4/8/97), 692 So.2d 1019, 1023). A significant matter 

of public concern is the protection of the public fisc, as indicated by La. R.S. 13:691. 

See n.3, supra, quoting from La. R.S. 13:691(A) and (B)(3).

The Office of Special Counsel (the OSC), in my view, has clearly and 

convincingly established that Judge Derbigny violated La. R.S. 13:691 regarding 

other so-called employee benefits as found by the Judiciary Commission. The 

record reflects that other court employees, who were not judges, could not access 

the supplemental insurance policies in the same large quantities and, hence, did not 

have benefits paid Aat the same rate@ as did Judge Derbigny. See La. R.S. 13:691(A) 

and (B)(3). The opinion tacitly concedes Judge Derbigny did not comply with the 

requirement for parity of benefits with non-judges set forth in La. R.S. 13:691, 

inasmuch as it finds Judge Derbigny selected supplemental insurance policies that 

were Aduplicative.@ In re Derbigny, 16-0921, slip op. at 14. A recognition that 

Judge Derbigny accessed duplicative coverage undermines finding that the OSC has 

made no showing that the insurance premiums attributed to Judge Derbigny 

exceeded those of any other judges or state employees. Under La. R.S. 13:691(A) 

and (B)(3), the questions to be answered are whether Judge Derbigny accessed 

benefits lawfully available to others and whether he accessed benefits at the same 

costs as non-judges. Because he accessed benefits that were Aduplicative,@ Judge 

Derbigny accessed benefits that were not lawfully available to others, or to himself; 

therefore, the costs for those benefits exceeded what others lawfully could impose 

on the public fisc.

Relatedly, I find the burden of proof placed on the OSC regarding the 

supplemental insurances is confounding, if not insurmountable. It should not be the 

task of the OSC to ascertain whether other employees, judges or non-judges, are 
8

unlawfully selecting more benefits than they are entitled to select. Implicit in 

finding there was Ano showing@ regarding others= selection of benefits is that if 

anyone else is selecting unauthorized or Aduplicative@ coverage, then no one has 

committed misconduct. Once the OSC established that Judge Derbigny was in 

violation of statutory law regarding insurance, it became his burden to establish any 

justification for taking advantage of the multiple policies.

This matter does not involve a failure by the Judiciary Commission to sustain 

its burden of proof. The most salient and relevant facts are not at issue. Rather 

this matter involves a determination of what law is to be applied to the facts and a 

determination of the appropriate sanction and amount of restitution. Those 

determinations are wholly within this court=s jurisdiction.

Before discussing the appropriate sanction, I sum up my views on the conduct 

at issue and on the consequences for that conduct. I agree with the majority that 

Judge Derbigny should reimburse the Judicial Expense Fund for the out-of-pocket 

reimbursements under the Exec-U-Care program. However, I find that accessing 

the program was itself a violation of La. R.S. 13:691, and amounted to ethical 

misconduct. I would, therefore, require Judge Derbigny to also reimburse the 

Judicial Expense Fund for the amount spent for Judge Derbigny to participate in the 

Exec-U-Care program, which is the amount of reimbursement found by the Judiciary 

Commission. Furthermore, I would remand to the Judiciary Commission for a 

determination of the premiums paid by the Judicial Expense Fund for supplemental 

insurance policies that were in excess of what is permitted by La. R.S. 13:691, and I 

would order Judge Derbigny to refund the premiums paid on unauthorized policies. 

I would exclude from that litany of policies those that Judge Derbigny accessed when 
9

he initially became a judge, except regarding any life insurance policies which are 

not authorized by La. R.S. 13:691.

Turning then to the sanction, I note that Judge Derbigny has previously 

received an admonishment from the Judiciary Commission for the late filing of a 

campaign finance report and the late payment of the related $2,500 fine. While I 

accept Judge Derbigny=s representation that he was unaware he was committing any 

misconduct in the present case, his lack of intent to commit misconduct is no excuse. 

See, e.g., In re Justice of the Peace Alfonso, 07-0120, p. 7 (La. 5/22/07), 957 So.2d 

121, 125 (AAn act need not be intentional to support judicial discipline.@). Finding 

some similarity between the conduct for which Judge Derbigny was previously 

admonished and the present misconductBinasmuch as then and now Judge Derbigny 

has failed to fully inform himself and to responsibly discharge the administrative 

requirements attendant with holding judicial officeBI believe that some period of 

actual suspension from judicial office is appropriate for these repetitive instances of 

misconduct. See, e.g., In re Free, 14-1828, p. 23 (La. 12/9/14), 158 So.3d 771, 

784-85 (prior judicial discipline was appropriate to consider when imposing a 

suspension). At a bare minimum, the sanction of public censure recommended by 

the Judiciary Commission should be imposed.

I also agree with the Judiciary Commission=s evaluation of mitigating factors. 

As summarized by the majority, Judge Derbigny=s Aconduct was significantly 

mitigated by the inaction of the Judicial [Counsel] and others who failed to properly 

advise the Criminal District Court judges about the legality of the supplemental 

benefits program.@ In re Derbigny, 16-0921, slip op. at 9. Moreover, A[t]he 

Commission agreed with Judge Derbigny that his level of culpability Y is greatly 

diminished by his lack of guidance from the judicial branch and by the actions of his 
10

predecessors.@ Id., 16-0921 at 16. I reiterate, however, that these are mitigating, 

not exculpatory factors.

I am not at all pressed to discern the reason for the Commission=s reversal of 

its position in 1994. The Commission clearly determined that its 1994 opinion Athat 

the judges had not engaged in any judicial misconduct by participating in the 

supplemental benefits program@ was wrong and has presently corrected its stance.8

 

Even then, the Judiciary Commission Aexpressed its strong concern that this practice 

[of accessing the Criminal District Court Judicial Expense Fund] may violate the 

original intent of the judicial salary parity statute.@ Thus, confronted in the present 

with misconduct that is significantly mitigated by a lack of administrative guidance, 

but is also aggravated by being related to Judge Derbigny=s prior misconduct in 

administrative matters, I conclude that the suspension which should be imposed 

should be brief in duration.

As a final detail, I note that Louisiana Supreme Court Rule XXIII, ' 22 

provides for the recovery of costs incurred. Because it is Judge Derbigny=s 

misconduct which provoked these extensive proceedings, and because the judicial 

salary parity statute violated here is intended to protect the public fisc, I would 

require Judge Derbigny to pay the costs of the proceedings.

Accordingly, I respectfully concur in part and dissent in part.9

 8

 Commendably, in changing its course, the Commission has publicly taken the stance that it 

previously erred, and has staked a claim to the adage, that Atwo wrongs don=t make a right.@

9

 Whether my analysis, which concurs with the determination of the Judiciary Commission that 

discipline and restitution are warranted, or the alternative analysis, which absolves the judge of 

discipline and the obligation to reimburse the public fisc, is the Atroubling@ or Apatently false@ or 

Aborder[ing] on outrageous@ analysis will ultimately be judged by those who evaluate these 

respective opinions in light of the record facts.

 Similarly, others can evaluate whether my analysis, or the analysis which departs from the 

Judiciary Commission=s recommendation and does not sanction this judge on these facts, is 

Apatently unfair.@
1

SUPREME COURT OF LOUISIANA 

No. 2016-O-0921 

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH 

CRIMINAL DISTRICT COURT, STATE OF LOUISIANA 

JUDICIARY COMMISSION OF LOUISIANA 

Guidry, J., dissents and assigns reasons.

I respectfully dissent because in my view the record shows by clear and 

convincing evidence that Respondent committed ethical misconduct in accepting 

multiple supplemental benefits in violation of La. Rev. Stat. 13:691A and B(3). 

The sheer number of policies he accepted, along with their high cost, some with 

cash surrender values, and others with duplicative coverages, should have put 

Respondent on notice to investigate the propriety of the court’s supplemental

benefits program. Despite Respondent’s reliance on the actions of other members

of his court, as well as the complicated history of the supplemental benefits 

program, Respondent could have and should have discovered for himself that the 

language of the statute is clear that life insurance, especially those with a cash 

surrender value, and the reimbursement program known as Exec-U-Care were not 

permissible expenditures of the Orleans Criminal District Court Judicial Expense

Fund. Thus, Respondent failed to maintain professional competence in the judicial 

administration of his court in violation of the Code of Judicial Conduct, Canon 

3B(1) and violated La. Const. art. V, Sect. 25(C), because he engaged in persistent 

and public conduct prejudicial to the administration of justice that brought his 

judicial office into disrepute. I would accept the Commission’s recommendation

and impose a public censure on Respondent for his misconduct. 

01/20/17
01/20/17

SUPREME COURT OF LOUISIANA

No. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH 

CRIMINAL DISTRICT COURT, STATE OF LOUISIANA

JUDICIARY COMMISSION OF LOUISIANA

CLARK, J., concurs in the result.
01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH CRIMINAL 

DISTRICT COURT, STATE OF LOUISIANA

JUDICIARY COMMISSION OF LOUISIANA

HUGHES, J., dissenting.

There have been many failures illustrated by this case. It is unfortunate that 

Judge Derbigny, at least at this point in time, should alone bear the brunt of these 

failures. Yet the facts cannot be changed. I would issue a public reprimand and 

order restitution.
1 

01/20/17 

SUPREME COURT OF LOUISIANA

NO. 2016-O-0921

IN RE: JUDGE DARRYL A. DERBIGNY, ORLEANS PARISH 

CRIMINAL DISTRICT COURT, STATE OF LOUISIANA 

JUDICIARY COMMISSION OF LOUISIANA

CRICHTON, J., concurring in part and dissenting in part: 

I concur in the plurality1 opinion’s finding that there has been no violation of 

the Code of Judicial Conduct in this case, and therefore, no sanction against Judge 

Derbigny is warranted. However, because this Court finds no ethical violation, I 

dissent from the plurality’s conclusion that Judge Derbigny must reimburse the 

Judicial Expense Fund for the out-of-pocket reimbursements paid to him under the 

Exec-U-Care program. As Justice Weimer points out in his dissent, and with 

which I agree, this Court is divested of jurisdiction under La. Const. art. V, ' 25(C) 

once there is a finding of no ethical misconduct, and consequently, the Court lacks

authority to order reimbursement.

In bringing formal charges against Judge Derbigny in this case, the Judiciary 

Commission reversed the view it had held since 1994, previously having 

determined there was no judicial misconduct involving the purchase of insurance 

by the Orleans Parish Criminal District Court Judges. In so doing, the Judiciary 

Commission has now abruptly declared that by engaging in the routine 

administrative practices of Criminal District Court, Judge Derbigny engaged in 

persistent and public conduct prejudicial to the administration of justice. As the 

plurality thoroughly explains, we disagree. 

1 “When a fragmented Court decides a case and no single rationale explaining the result enjoys 

the assent of five Justices, the holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 

430 U.S. 188, 193 (1977) (internal quotations omitted). 
2

Although the Commission may have found a violation by clear and 

convincing evidence, in my view, the Commission seems to have placed little 

weight on the 20- to 30-year routine practice of the Criminal District Court and its 

seemingly perfunctory administrative procedures. Not only did the Commission 

seem to overlook the historical practices of Criminal District Court, it also 

mistakenly placed little emphasis on the 1994 opinion of the Judiciary Commission

(that there was no judicial misconduct involving the purchase of insurance for the 

judges); the 1994 legal opinion of the judges’ counsel, Robert Murphy;2 the 

complete inaction of the policy-making arm of the Louisiana Supreme Court, the 

Judicial Council; and the 2011 legal opinion of the judges’ counsel, Normand 

Pizza (who also concluded the program was not an ethical violation). Moreover, 

while intent (whether specific or general) is noticeably not an element of a Code of 

Judicial Conduct violation, this Court must still examine Judge Derbigny’s actions 

in light of the unique historical factors listed above. In doing so, I cannot under 

any circumstance conclude any violation of the Canons was proven by clear and 

convincing evidence (a considerably higher standard than that required in civil 

proceedings) in this case. 

The implication by one of my dissenting colleagues that a majority of this 

Court is shirking its duty to protect the public is troubling. Clearly, it is a sacred 

tenor repeatedly recognized by this Court that the primary purpose of the Code of 

Judicial Conduct is to protect the public rather than to discipline a judge. In re 

Marullo, 96-2222, p. 6 (La. 4/8/97), 692 So.2d 1019, 1023. And, furthermore, this 

Court does not shy away from imposing discipline when the charges are, indeed, 

 2 The dissenting justice states this Court places an “insurmountable burden of proof” on the 

Office of Special Counsel regarding the supplemental insurance. I respectfully disagree, as the 

Commission in 1994 concluded there was no ethical violation. Without a subsequent 

pronouncement by the Judiciary Commission or this Court during the span of time since 1994, I 

am confounded by the lack of due process and how the burden of proof can possibly be met. 
3

proven by clear and convincing evidence.3 The implication by one of the 

dissenters in this case that we show leniency to judges who, by clear and 

convincing evidence, are proven to have violated the Judicial Canons is patently

false and, in my opinion, borders on outrageous.

This Court is constitutionally vested with exclusive original jurisdiction in 

judicial disciplinary proceedings, an obligation we do not take lightly. We are also 

duty-bound to apply the appropriate burden of proof to the facts and evidence of 

each case without influence of public clamor or fear of criticism. While I likely 

would have taken a different course of action from that taken by Judge Derbigny 

and his Criminal District Court colleagues, I note such an observation is irrelevant 

in objectively determining whether a Canon violation has been proven by clear and 

convincing evidence. In my view, the Commission and one dissenting justice have 

incorrectly characterized the evidence presented in this case to be merely 

mitigation which, according to them, should only be considered after finding an 

actual ethical violation. While that principle stands true, it is also correct that the 

unique historical background evidence is relevant and directly bears on whether the 

prosecution has sustained its burden of proof as to the allegations of misconduct. 

 3 This Court has removed judges in cases when the most serious conduct is proven by clear and 

convincing evidence. See, e.g., In re Benge, 09-1617 (La. 11/6/09), 24 So.3d 822, reh’g den., 

11/23/09 (judge removed from office for failing to decide a case on the evidence and testimony 

presented at trial); In re Jefferson, 99-1313 (La. 1/19/00), 753 So.2d 181, reh’g den., 2/18/00 

(judge removed from office for reckless and bad faith handling of contempt proceedings, 

unauthorized practice of law, and failure to cooperate with supernumerary judge); In re 

Johnson, 96-1866 (La. 11/25/96), 683 So.2d 1196, reh’g den. 12/13/96 (judge removed from 

office for continuation and management of business providing pay telephone service to inmates 

under contract with sheriff after he became a judge); In re Huckaby, 95-0041, (La. 5/22/95), 656 

So.2d 292 (judge removed from office for failing to file federal income taxes).

This Court has also suspended or publicly censured judges when appropriate. See, e.g., 

In re Best, 15-2096 (La. 6/29/16), 195 So.3d 460 (judge suspended without pay for fifteen days 

for mishandling of a hearing to terminate probation); In re Free, 2016-0434 (La. 6/29/16), 100 

So. 3d 571 (judge suspended without pay for one year for making ex parte comments about a 

pending case to a district attorney and the victims’ families; improperly holding a defendant in

contempt of court; and making inappropriate comments towards domestically abused women); 

In re Sims, 2014-2515 (La. 3/17/15), 159 So. 3d 1040 (judge suspended for thirty days without 

pay for improperly holding prosecutor in contempt and impermissibly dismissing fifteen criminal 

cases); In re Whitaker, 463 So.2d 1291 (La. 2/25/85) (judge suspended without pay for one year 

for smoking marijuana, associating with users and sellers of illegal drugs and with prostitutes, 

and association with an individual against whom criminal charges were pending).
4

As a result, I believe the evidence in the record before us results in a very unclear 

and unconvincing set of allegations. As the plurality opinion implicitly concludes, 

we do not reach the sanction mitigation phase because the alleged violations were 

not proven by clear and convincing evidence.

The Judiciary Commission has now spoken, reversing its original 1994 

opinion, and this Court does not disagree with the Commission’s change of course. 

Again, noting the Court’s inherent and plenary authority over lawyer and judicial 

discipline matters and in accord with traditional notions of due process, I believe 

that prospectively, all judges are now placed on notice that any insurance or 

retirement-related benefits not specifically authorized by statute should not be paid 

for by parish or state funds. In sum, by recognizing the twin objectives of 

protecting the public, which includes our public fisc, and according our elected 

judges basic due process, we achieve justice deserved.