Judge asks for further arguments over constitutionality of levee board lawsuit

By Louisiana Record reports | Oct 7, 2014

BATON ROUGE – A Baton Rouge judge will hear arguments on the constitutionality of legislation that nullifies a sprawling lawsuit against nearly 100 oil companies by a local flood control authority for coastal land loss.

19th Judicial District Judge Court Janice Clark hinted that she may have already determined that the lawsuit by the Southeast Louisiana Flood Protection Authority-East (SLPFA-E) can proceed, despite the wishes of the state legislator and Gov. Bobby Jindal. In a statement issued to reporters, Jindal’s office accused supporters of the lawsuit of venue shopping and vowed to appeal Clark’s ruling if she ruled that the case can proceed.

At issue is Act 544, a law passed in the 2014 state legislative session that would prevent local governments from pursuing lawsuits without state approval. The act, which passed overwhelmingly was directed at the flood authority, which earlier had filed a suit seeking damages from 97 oil companies for damaging coastal marshlands. Controversial from the start, the lawsuit, observers say, could result in a judgment amounting to tens of billions of dollars. It would also enrich the Jones, Swanson, Huddell & Garrison law firm of New Orleans, whose principal, Gladstone Jones, is leading the suit.

Under the terms of the agreement negotiated by SLPFA-E, lawyers involved in the case would receive costs, plus between 22 percent and 33 percent of the damages. A “poison pill” provision inserted into the contract requires the Flood Protection Authority to pay Jones for all costs if it decides to drop the suit. Media reports indicate that the Jones firm has already racked up more than $600,000 in costs.

Judge Clark was not originally asked to determine the constitutionality of Act 544. Rather, the issue came up at the request of trial lawyers, during a separate case filed by an oil industry group, the Louisiana Oil and Gas Association (LOGA). In that action, which preceded the passage of Act 544, LOGA sued to stop the SLPFA-E lawsuit on the grounds that State Attorney General Buddy Caldwell didn’t have the authority to approve it.

However, Clark said she was well within her authority to determine the constitutionality of the legislative act.

“On and on and over again courts have to adjust their judgments,” Clark said.

Clark did not immediately rule on Act 544’s constitutionality, instead asking for more information from the parties involved, especially the Attorney General’s Office, regarding the matter. But she said, without elaborating, that the legislation appeared flawed because it violated the separation of powers provisions of the state constitution.

“I am talking about whether or not one branch of government has the power to exercise that which belongs to another branch,” Clark said.

In any case, Clark said it was apparent that SLPFA-E, created in the wake of Hurricane Katrina to oversee coastal flooding issues, might not fall under the lawsuit ban as identified by the legislative act. Rather, she said, SLPFA-E may be a sub-governmental state entity, as opposed to a local government agency that is targeted by the legislation.

Melissa Landry, executive director for the citizen watchdog group Louisiana Lawsuit Abuse Watch, said the actions of SLPFAE to get Clark’s court to rule Act 544 are questionable.

“Once again the trial lawyers hijacked an unrelated case and turned to the district court in an attempt to overturn the Legislature, the Governor and the will of the people,” she said. “Fortunately, the impact of Judge Clark’s ruling will be minimal, at best, because a federal court is already scheduled to consider similar arguments in November."

Don Briggs, President of LOGA, said hearing the case based on the constitutionality of Act 544 simply does not make sense.

“LOGA maintains the position that the Louisiana Attorney General illegally consented to the legal fee contract entered into by SLFPA-E. Furthermore, ACT 544, which deals with SLFPA-E's standing in a federal court case is irrelevant to a lawsuit which is strictly about the AG's responsibilities and thus should not be dealt with here,” he said.

It’s unclear what effect Clark’s ruling might have on the case, as it has been removed to federal court.

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