Former Louisiana AG claims immunity, asks for dismissal of retaliation suit

By Mike Helenthal | Jun 2, 2016

BATON ROUGE–Former Louisiana Attorney General James D. “Buddy” Caldwell is using an oft-cited elected official immunity defense to dismiss a lawsuit that accuses him and others of retaliating against a Fourth Judicial Court judge.

Caldwell announced the defense in a motion he filed May 24 to dismiss the suit.

The suit, filed by Judge Sharon Marchman against Caldwell and other Fourth District judges, says the judges conspired to take away committee chair duties and made her feel unwelcome in the courthouse following her investigation of suspicious activities in the district that included alleged payroll fraud and document destruction.

Former Louisiana Attorney General James "Buddy" Caldwell  

Marchman is claiming her protections under the First and 14th Amendments were violated and that the actions eventually led to her resigning from the job she had held since 2005.

Caldwell’s attorneys are arguing that he is protected from Marchman’s claims under the 11th Amendment, which provides immunity for public officials acting in their official capacities. That protection is valid even when damages can be proven, which Caldwell’s attorneys also say Marchman’s counsel has not done.

Marchman reportedly is also accusing Caldwell and two attorneys of conspiring with a law clerk to submit pleadings on her behalf in a suit accusing Marchman of committing illegal acts that include improperly disclosing information about the clerk.

Caldwell’s attorneys have argued there was no conspiracy and that Marchman doesn’t have a 14th Amendment claim either, because, outside of the elected official immunity defense, she would still have to be defined as part of a protected class to be eligible.

Dane Ciolino, a legal ethics expert at Loyola University New Orleans Law School, told the Louisiana Record that  Caldwell’s defense is not that unusual in the world of elected officials.

He said such protections, whether it be absolute or qualified immunity, have been put into law to allow government officials to discharge the responsibilities of their positions without the fear of being sued personally.

Such laws still allow action against the state for wrongdoing or to collect damages, but protects the government agent from individual civil action.

“We want government actors to do their jobs and have to think about their own interest when they are representing the state,” he said. “It limits undue timidity and recognizes that (officials) aren’t working for their own benefit and do make mistakes.”

Ciolino said that doesn’t mean that officials can just do what they want, regardless of the law and who gets hurt.

Even with immunity, officials can’t commit crimes or be responsible for gross violations of citizens’ rights, especially when it pertains to individual constitutional protections.

“(Immunity) has a purpose, but it’s certainly not a free pass for all liability,” Ciolino said.

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