Caldwell not taking sides in suit over La. SC chief justice

Jessica M. Karmasek Aug. 14, 2012, 1:00pm



NEW ORLEANS (Legal Newsline) - Louisiana Attorney General James "Buddy" Caldwell says he won't take sides on who should become the state Supreme Court's next chief justice.

"I have taken absolutely no position whatsoever with regard to who will become the next chief justice for the Louisiana Supreme Court," the attorney general said Thursday, according to The Times-Picayune.

His statement comes after a group of New Orleans attorneys, who filed motions in a federal case last week on behalf of the State, identified themselves as "special assistant attorneys general."

Caldwell said he asked them not to do so.

"I instructed those attorneys not to make appearances in the litigation as 'special assistant attorneys general.' Obviously, the attorneys ignored my request and made their appearances as 'special assistant attorneys general,'" the attorney general told the newspaper.

In their filings Wednesday, the four attorneys -- Kevin R. Tully, E. Phelps Gay, Elizabeth S. Cordes and H. Carter Marshall, all with the New Orleans firm of Christovich and Kearney LLC -- were identified as "Special Assistant Attorneys General for the State of Louisiana."

On Thursday, the four attorneys filed a memorandum to clarify representation with the federal court.

"To be clear, undersigned counsel does not represent or speak for the State of Louisiana, the Office of the Governor; the State of Louisiana, Office of Attorney General; or the State of Louisiana, Office of the Secretary of State," the two-page filing states.

Justice Bernette Johnson, who filed the lawsuit in the U.S. District Court for the Eastern District of Louisiana in July, argues she is next in line for the job of chief justice.

In a four-page response filed Monday, Johnson requests that the federal court strike all pleadings submitted by Tully Wednesday.

"The Memorandum to Clarify Representation makes clear that Mr. Tully filed those pleadings on behalf of the Louisiana Supreme Court, which the court has already found cannot intervene because it lacks juridical capacity," she wrote.

Last week, the federal court denied the state Supreme Court's motion to intervene, as well as other motions for leave, on the grounds that it lacks "juridical capacity."

In her response, Johnson noted that the first sentence of each of the four documents filed Wednesday stated that they were filed on behalf of the State.

"The next day Mr. Tully filed a 'Memorandum to Clarify Representation,' which stated that 'undersigned counsel does not represent or speak for the State of Louisiana, the Office of the Governor; the State of Louisiana, Office of the Attorney General; or the State of Louisiana Office of the Secretary of State.' Instead, he stated he 'appeared for the State of Louisiana to protect the interests of the judicial branch of government only,'" the justice wrote.

"There is no difference between representing the Louisiana Supreme Court and representing the judicial branch. Moreover, as the Memorandum to Clarify representation makes clear, Mr. Tully does not represent the State of Louisiana or any State-related entity that is a party to this case.

"As a result, the court should strike the pleadings filed by Mr. Tully on Aug. 8 because they did not comply with the court's Aug. 6 order."

Johnson is being represented in the case by the Lawyers' Committee for Civil Rights Under Law along with local counsel Gauthier, Houghtaling and Williams, Clarence Roby Jr. PC and the Louisiana Justice Institute.

In her lawsuit, Johnson has requested that the court enforce its consent judgment in Chisom v. Roemer.

In 1992, the federal court in Chisom signed a consent judgment to settle a case brought under the Voting Rights Act.

The case alleged that Louisiana's decision to submerge Orleans Parish into a two-member judicial district (the only district with more than one member) diluted the voting strength of African American voters in violation of the U.S. Constitution and the Voting Rights Act.

At the time, no African American had ever been elected to the Louisiana Supreme Court.

To allow two sitting white justices to complete their existing term, the consent judgment provided for an eighth justice -- referred to as the "Chisom judge" -- who would be elected from Orleans Parish.

The judgment provided that the Chisom judge would have the same rights, emoluments, powers and duties as the other justices, and the tenure of the time spent as the Chisom judge would count toward seniority on the Supreme Court.

Johnson was elected as a Chisom judge in 1994 and was reelected as a permanent justice in 2000 and 2010.

Meanwhile, fellow Justice Jeffrey Victory argues he has the right to succeed Chief Justice Catherine "Kitty" Kimball, who announced in April that she is retiring from the Court in January 2013.

Kimball, who has served nearly 20 years on the Court, was elected in November 1992 from the state's Fifth Supreme Court District. She became the first woman to serve on the state Supreme Court.

Victory, who joined the Court a year after Johnson, argues that he is senior to Johnson because her years as a Chisom judge do not count toward her seniority.

"We are extremely disappointed in this misguided effort to treat Justice Johnson as a second class justice," Lawyers' Committee Executive Director Barbara Arnwine said in a statement.

"The consent judgment is absolutely clear that Justice Johnson is entitled to the same rights as any other elected justice."

Under Louisiana law, the chief justice position shall be filled by the longest-serving justice on the Court.

Johnson's motion requests that the federal court reopen the Chisom case and declare she is second in seniority behind Kimball, among other things.

Three federal judges have recused themselves from presiding over the case.

Jay Zainey, Ivan Lemelle and Carl Barbier -- all judges on the Eastern District -- each have disqualified themselves.

Zainey cited the law firm representing Johnson; Lemelle didn't provide a specific reason; and Barbier said his daughter is a law clerk for the justice.

Judge Susie Morgan is handling the case.

From Legal Newsline: Reach Jessica Karmasek by email at

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