In battle over ‘forced recusals’, Louisiana Supreme Court justice takes his case to federal court
In an unusual legal skirmish, Louisiana Supreme Court Justice Jeff Hughes filed a federal lawsuit over the holidays against four of his fellow justices, challenging their decision to exclude Hughes from participating in consideration of two so-called legacy lawsuits before the high court because the plaintiffs' attorneys contributed hundreds of thousands of dollars to his 2012 election.
Hughes, a Republican from Livingston Parish who is in his first term on the court, asked a federal judge to undo his "forced recusal" from the cases, claiming his colleagues on the bench effectively have placed "unconstitutional limits on the amount of money a person can contribute to a political action committee."
In November, the state Supreme Court granted motions by a group of oil and gas companies to remove not only Hughes but also Justice Jeannette Theriot Knoll from the potentially high-stakes proceedings a rare move that was followed, days later, by the court's voting 4-1 not to take up either lawsuit in question. Applications for reconsideration remain pending in both matters.
The oil companies sought to portray Hughes as financially beholden to the plaintiffs' lawyers, who backed his campaign for the court through a PAC known as Citizens for Clean Water & Land. The companies also took aim at the role Knoll's husband has played as an attorney in several similar legacy lawsuits cases that generally date back decades and seek compensation for environmental damage.
Knoll issued a blistering objection to her removal from the cases, saying her fellow justices had acted with "reckless disregard" and bowed to "the unprofessional tactics" of a special-interest group.
"At the behest of defendants," she wrote, "this court has engaged in a high-handed attempt not only to manipulate the outcome of this case but also to disenfranchise the voters of my district who have elected and re-elected me."
Hughes did not author such a dissent but quietly upped the ante last week in federal court, where he asked that the recusal orders be lifted and that his colleagues on the Supreme Court be barred from excluding justices from future cases "based on contributions to political action committees that supported their election."
Named as defendants in the lawsuit are Chief Justice Bernette Johnson and Associate Justices Greg Guidry, Marcus Clark and John Weimer.
The case has been assigned to U.S. District Judge Mary Ann Vial Lemmon.
The justices did not offer any written explanation for recusing Hughes and Knoll. The state code of judicial conduct states that a judge "should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." If a Supreme Court justice refuses to step aside as in the cases of Hughes and Knoll the state code of civil procedure calls for the recusal motion to be heard by the other justices of the court.
Kyle Schonekas, the New Orleans attorney representing Hughes, did not respond to requests for comment Monday. However, in a court filing, he warned that the recusals could reverberate far beyond the legacy lawsuits and that Hughes "may now be effectively barred from communicating with any individual who supports or might support his re-election because such individual may one day have a case" before the state Supreme Court.
The recusal, Schonekas added, also runs afoul of the U.S. Supreme Court ruling in the Citizens United case, a landmark decision that prohibits the government from restricting campaign contributions by corporations and unions. "Justice Hughes has a First Amendment right to communicate his electoral message to the public, including with individuals who contribute or might contribute to a political action committee," he wrote in a 16-page filing.
Attorneys for ExxonMobil and BP, among other energy companies, raised concerns last year that their legal opponents, including Baton Rouge trial lawyer John H. Carmouche, who specializes in legacy lawsuits, had helped to bankroll Hughes' runoff victory.
In court filings, the oil companies said Carmouche's PAC "expended $486,124 in support of Justice Hughes in the primary and runoff elections," paying for TV ads, direct mailers and polling. They said attorneys in Carmouche's firm alone contributed some $360,000 to the PAC.
"Plaintiffs' counsel were responsible for forming the PAC that contributed and expended nearly half of the total amount spent (on) Justice Hughes' successful election campaign, and more than five and a half times the total amount of contributions raised by Justice Hughes in support of his primary election," attorneys for the oil companies wrote, referring to the contributions as "extreme circumstances."
"It is certainly logical and objectively reasonable," they added, "for Justice Hughes to have a personal tendency toward plaintiffs' counsel such that his impartiality might reasonably be questioned."
Hughes countered in his federal court filing that the bulk of the funding from Carmouche's firm had been spent on general environmental awareness advocacy that was not made in support of any specific candidate. "The $487,000 spent by the Clean Water PAC on independent expenditures in support of Justice Hughes' election accounted for only 16 percent of all campaign spending" in the District 5 race, his attorney wrote.
One of the legacy lawsuits involves property in St. Martin Parish that was allegedly contaminated through oil and gas production. A judge dismissed the 2006 claims, citing the "subsequent purchaser" doctrine, which generally precludes a plaintiff's right to compensation stemming from property damage that occurred before a purchase. That decision was affirmed in March by the 3rd Circuit Court of Appeal in Lake Charles.
The other case also dates back several years and involves land in Tensas Parish that also was contaminated by oil and gas exploration.
Copyright 2016, Capital City Press LLC
From: Jim Mustian, "In battle over 'forced recusals,' Louisiana Supreme Court justice takes his case to federal court," The Advocate, New Orleans, January 4, 2016, http://www.theneworleansadvocate.com/news/14474150-123/in-battle-over-forced-recusals-la-supreme-court-justice-takes-his-case-to-federal-court, accessed 01/07/2016. Jim Mustian can be reached at firstname.lastname@example.org. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
Tulanelink thanks wesawthat.blogspot.com for bringing this case to its attention.
Justice Hughes asked to recuse himself in several cases involving large campaign contributor
NEW ORLEANS Three major and several independent oil companies have asked Louisiana State Supreme Court Justice Jeff Hughes to recuse himself in a pair environmental lawsuits up for review.
They claim he is tainted by trial lawyers who spent nearly $400,000 of their own money getting him elected.
Hughes, who narrowly won election to the Louisiana Supreme Court in 2012, received campaign support from attorneys representing plaintiffs in two cases being considered in front of the court. Defense attorneys claim this meets the U.S. Supreme Court's standard of having a "significant and disproportionate influence" on Hughes' victory and may influence his impartiality in the cases.
Defense attorneys representing ExxonMobil Corp., BP America Co. and Chevron Corp., along with a half-dozen independent energy firms, filed for Hughes' recusal last month. The defense attorneys said a group of plaintiffs' attorneys made a "careful and deliberate" series of campaign contributions to a political action committee (PAC) that supported Hughes' election while the two cases were pending, which compromised the oil companies' right to due process.
The motion focuses particularly on Gonzales-based law firm Talbot, Carmouche & Marcello, which specializes in pursuing so-called "legacy lawsuits" that seek monetary awards from major oil companies for alleged environmental damages related to onshore oil drilling activities that occurred decades or even generations ago.
Suing major oil companies for legacy damages has become what some critics call a "cottage industry" in Louisiana. According to state records, of the 385 legacy oil cases filed in the state, the Talbot, Carmouche & Marcello is pursuing 182 of them. Many of the other legacy lawsuit cases are currently being pursued by a handful of other specialist plaintiffs' firms and attorneys who also donated heavily to the PAC supporting Hughes' election.
The Louisiana Supreme Court has emerged as a battleground in legacy lawsuit oil litigation, as rulings by the state's high court in recent years have overturned previous legislative attempts to reform the lawsuits and ensure awards go towards remediation and clean-up of lands rather than enriching landowners and the attorneys handling their cases. The lawsuits themselves, which often seek damages in the hundreds of millions of dollars, have been noted by critics to come at great expense to the energy industry. Notably, most of the major companies named in the lawsuits have not operated onshore in Louisiana in decades–in many cases before their activities were regulated.
The two recusal motions filed last month are nearly identical and both heavily cite state campaign finance records. In the motions, the companies assert that routine campaign contributions should not be the basis for a recusal demand. However, in this case, the motions note a PAC set up by John Carmouche, lead partner at Talbot, Carmouche & Marcello, spent around $500,000 to elect Hughes.
Carmouche did not respond to a request for comment on this story.
All together, the Carmouche-controlled Citizens for Clean Water and Land PAC raised $775,000 and spent money on a single race–Justice Hughes' 2012 election. Defense attorneys provided records showing that more than 90 percent of the funds the PAC raised came from a handful of legacy lawsuit firms.
Although by law PAC spending is independent, the defense cited public records showing that during the primary election attorneys and law firms specializing in legacy lawsuits provided more than five-and-a-half times as much money to the race than Hughes' own campaign did.
In addition, given that PAC contributions are not limited, donations funds provided by contributors to the Citizens for Clean Water and Land PAC far exceeded the $5,000 maximum individuals are allowed to put into state races. Citing campaign finance records, the defense's recusal motion notes that the Carmouche and his law partners individually gave a combined $360,000 to the PAC and a handful of other law firms specializing in legacy lawsuits put in nearly that amount.
Ultimately, the Citizens for Clean Water and Land PAC spent roughly $500,000 on Hughes' election and state records show following Hughes' victory the PAC spent an additional $84,000 helping him retire personal campaign debt.
All of these donations and expenditures occurred while the two cases before the Louisiana Supreme Court were pending.
"[I]t is undeniable that the contributions and expenditures by the plaintiff legacy attorneys had a 'significant and disproportionate influence' in placing Justice Hughes on this case,'" the motions say. "A reasonable, objective analysis of the circumstances at issue leads to the inevitable conclusion that Justice Hughes has a pre-existing inclination toward the plaintiff's counsel."
Ed Chervenak, a political scientist professor at University of New Orleans said from his outside view, it looks as if legacy lawyers supported Hughes' campaign in an effort to undo legislative reforms enacted last year.
"If you can't get satisfaction in the legislature you go to the courts,'' Chervanak said.
Chervanak added that established case law suggests that Hughes will need to recuse himself from legacy cases that appear in the state Supreme Court. He added that if Hughes refuses to step down from the cases voluntarily, he could try to advance the argument that since he did not control the PAC, there is no conflict of interest.
"But still it seems like they worked really hard to get this individual elected to the court," Chervanak said.
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From: Kyle Barnett, "Justice Hughes asked to recuse himself in several cases involving large campaign contributor," Louisiana Record, May 27, 2015, http://louisianarecord.com/stories/510586147-justice-hughes-asked-to-recuse-himself-in-several-cases-involving-large-campaign-contributor, accessed 01/09/2016. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
Justice for Sale?
The right to a fair hearing before an impartial judge is one of the most basic tenets of America's legal system. The United States Constitution provides for a system of federal and state courts that operate with integrity, independent of outside influence and that is what citizens expect. But in the state of Louisiana, where our judges collect campaign contributions and participate in partisan elections, those simple tenets can be called into question.
Two important cases currently pending before the Louisiana Supreme Court highlight this point. At issue in Bundrick v. Anadarko and Walton v. Exxon Mobil is whether Justice Jeff Hughes, a Republican on the state's high court, should recuse himself from cases involving plaintiffs' attorneys who contributed heavily to his election.
In 2012, Hughes was one of eight candidates in a wide-open race to replace retiring Supreme Court Justice Kitty Kimball. Early polls showed Hughes, at best, in the middle of the crowded field of candidates. But in the final days of the primary election, Hughes pulled away from the pack and advanced to the run-off, which he ultimately won. The judge's eleventh hour surge in the polls coincided with an unprecedented television media buy in support of Hughes, all paid for by a political action committee established by plaintiffs' lawyers heavily involved in a legal practice known as "legacy lawsuits."
For more than a decade, this booming litigation has put millions of dollars into the pockets of aggressive lawyers and landowners who lodge environmental contamination complaints, many of which are unsubstantiated, against oil and gas producers for activity that took place decades and sometimes a century ago. Economists estimate this niche sector of environmental litigation, which is unique to Louisiana, has cost the state thousands of jobs and billions in foregone investment. The legislature has passed a series of reform bills aimed at putting a stop to this litigation racket. Now, it seems, the legacy lawyers are turning to our courts to help preserve their lucrative practice.
This is the context in which the altruistic-sounding Citizens for Clean Land and Water Political Action Committee (PAC) was born. Established by Baton Rouge-based attorney John Carmouche of Talbot, Carmouche & Marcello, the PAC collected more than $750,000 from just a few law firms heavily involved in legacy lawsuits.
From that war chest, Carmouche's PAC spent more than five times the amount otherwise raised by Hughes in his primary election including more than $300,000 spent on a television advertising blitz that increased Hughes' name recognition with voters in the final days leading up to the primary race. After Hughes' election to the state's high court, the legacy attorneys then took the extra step of assisting Justice Hughes with the retirement of debt he incurred during his campaigns to the tune of more than $84,000.
All this took place while Carmouche and his associates had legacy cases pending before the Supreme Court so the question becomes should Justice Hughes be allowed to help decide those cases, given the extraordinary efforts the plaintiffs' attorneys undertook to help him get elected? Or should he recuse himself to avoid the appearance of bias and impropriety?
Judicial neutrality is one of the defining elements of our legal system, and it is clearly being challenged here. Surely, not every contribution from an attorney to a judge should trigger concerns of impartiality, but the extraordinary and outsized campaign expenditures of the plaintiffs' attorneys involved in this case most certainly do.
Interestingly, the United State Supreme Court recently handed down decisions in two controversial cases that also dealt with issues of judicial independence making it clear that wealthy individuals cannot use campaign contributions to influence the administration of justice. In Caperton v. Massey, where a West Virginia businessman invested large sums of money to support the election of the chief justice of the West Virginia Supreme Court, the U.S. Supreme Court ordered the chief justice to recuse himself from a $50 million case involving the businessman's company.
Writing the majority opinion, Justice Anthony Kennedy found, "[T] here is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."
Late last month, the U.S. Supreme Court reiterated this point again in Yulee v. Florida Bar. "When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims," wrote Justice Ruth Bader Ginsburg again for the majority. "Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns." She added, "Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence."
Based on these rulings from the U.S. Supreme Court and any other objective standard it is obvious what Justice Hughes should do in the Louisiana cases. Anything less would create the unfortunate, but unmistakable, impression that justice is for sale in our state.
Copyright 2016, Jeremy Alford - LaPolitics
From: Melissa Landry, "Justice for Sale?," LaPolitics, May 19, 2015, https://lapolitics.com/2015/05/landry-justice-for-sale/, accessed 01/09/2016. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.