Louisiana Voice

Remember in yesterday’s LOUISIANA VOICE POST, I briefly touched on CONFIDENTIALITY CLAUSES in lawsuit settlements?

Well, while that passing observation was in reference to an entirely separate legal issue, the matter of confidentiality clauses coincidentally surfaced today in a Bloomberg Tax story by writer Michael Bologna (no baloney).

Bloomberg Tax, like its sister service Bloomberg News, has a paywall and I’m not a subscriber so I’m unable to access the full article but essentially it says that the Louisiana Department of Revenue has “confidentially settled” a major tax lawsuit against ConocoPhillips Co. that could have meant a $700 million windfall to the state in the form of back taxes, penalties and interest due the state.

The Revenue Department refused to say if Conoco paid even one red cent in the settlement.

“Could have.” But apparently, we’ll never know because of that confidentiality clause that shields Louisiana’s taxpayers from ever knowing how much the state will receive in funds to meet a looming fiscal cliff that seems to pop up with increasing frequency these days.

Folks, don’tcha think that we, as taxpaying citizens of Louisiana, deserve to know (a) how much the state receives from these lawsuits and (b) how much the state has to pay in litigation costs assessed against it? I mean, after all, it is our money that’s being tossed around here. There should be some accountability, I would think. But hey, that’s just me.

Well, it isn’t just me. Jan Moller, executive director of the non-partisan fiscal policy think tank Invest in Louisiana, had this to say about the settlement:

“The administration should explain to the public why it walked away from a potential $700 million lawsuit. This is money Louisiana desperately needs. If the state is going to ask ordinary citizens to pay taxes, then certainly the wealthiest corporations should also pay what they owe.”

 Steven Procopio, president of the Public Affairs Research Council of Louisiana, added that the department should explain why it withdrew from the lawsuit. “[C]itizens will be left to speculate why potentially $390 million to $700 million was left on the table,” he said.

But hey, it ain’t our first rodeo with this song and dance.

Last December, the state and Cameron Parish agreed to a confidentiality settlement with BP, Hilcorp and Shell in a coastal damage lawsuit potentially worth up to $7 billion in damages to the state. But again, we don’t know the real value because (ahem) that little bit of information remains protected.

A joint motion filed last Dec. 8, (that was on a Friday, the day of the week most often chosen by politicians to ensure the least news coverage as both reporters and readers gear up for the weekend) by attorneys for all litigants – the three oil companies and the parish and state – created individual agreements between each of the companies and the parish and state that resolved all claims outlined in a 2016 coastal damages lawsuit. It said the protective order is needed to shield actions by both parish plaintiffs and oil company defendants in 41 other pending coastal damage lawsuits.

There you have it. The confidentiality of the agreement was need “to shield” actions in other coastal damage litigation.

It just seems to me that the interests of the state and its 4.6 million taxpaying citizens should have taken precedent over the interests of multi-billion-dollar oil and gas conglomerates. But again, that’s just me.

Again, it’s me thinking that the residents of Southwest Louisiana, where this litigation was concentrated, certainly deserved better.

It’s been four years, after all, since the area was visited on August 27, 2020, by HURRICANE LAURA with torrential winds that fell just shy of making her a Category 5 storm, but still the most severe storm to hit the state in a century and the 10^th worst in the U.S. As if that were not enough, six weeks later, Hurricane Delta, a Category 2 but still an ugly storm cut a near-identical swath through the same area hit earlier by Laura.

Recovery, even after four years, remains agonizingly slow. Damaged roofs remain covered by the infamous blue tarps, now frayed from four years’ exposure to the elements. Other houses were simply abandoned, rotting where what’s left of their skeletal remains stand.

I’m pretty sure the area could’ve used some of that potential $7 billion in damages. But again, that’s just me thinking out loud.

Read Full Post »

Back in 1868, British Prime Minister William Gladstone said, “Justice delayed is justice denied.” The famous phrase was repeated in 1963 by the Rev. Martin Luther King, Jr. It rings as true today as it did 156 years, or 61 years, ago.

If you’ve ever had the misfortune to experience a close encounter of the third kind with our judicial system, those five words probably have special significance to you and you’ve likely come away with the feeling that the system is somehow weighted against you.

And you’d be right.

That’s perhaps why the Louisiana Supreme Court will be taking up a challenge to a century-old law that gives legislator-lawyers wide discretion to seek delay after delay of courtroom trials – at the expense of time, money and justice to the parties of lawsuits are criminal cases.

Arguments are scheduled to be heard around mid-morning on Thursday in New Orleans.

One of the endearing features of our court system is that of unending delays, or in the legal parlance, continuances. It’s gotten to the point that setting a date for a trial is almost meaningless because in all likelihood, there’ll be a continuance in your future. Your court date will be postponed, perhaps numerous times, before it ever actually goes to trial – if indeed, it ever does.

In criminal cases, prosecutors faced with a weak case will negotiate a plea bargain for a lesser charge and a shorter prison sentence, or in some cases, a fine or probation. The defendant is pressured into this agreement as opposed to taking the chance of a longer, more severe sentence. But no worry, it’s still called a win, or a conviction, by the district attorney who will use it to bolster his statistics to prove he’s tough on crime when it’s reelection time – or when he decides to move up and run for a judgeship or even attorney general. Tough on crime is always a good card to play.

In civil cases, there is often what’s come to be called a courthouse steps settlement when the parties come together at the last minute for a settlement that contains the inevitable confidentiality clause (meaning we never learn how much the settlement is for, even when it involves public monies). As often as not, the defendant will agree to the settlement while admitting no actual liability – again, a slick way of keeping potential future claimants from getting an idea what their claim may be worth in a similar situation (which is often the same reason for not going to trial).

But back to those seemingly never-ending continuances, the cruelest of a thousand cuts for those like Jeremy Ducote and Carley Magette or in the case of Barron Semaj Bailey, an inmate at Bayou Dorcheat Correctional Center who insists he’s innocent of the murder he’s accused of and who wants, but can’t seem to get, his case tried because of incessant continuances.

Why not? Because Ducote’s attorney is State Rep. Kyle Green (D-Marrero) and Bailey is represented by State Sen. Katrina Jackson (D-Monroe) and Louisiana law allows legislator/lawyers to file ex parte motions for legislative continuance and extension for the entirety of regular state legislative sessions, special sessions and for 60 days following adjournment of any session. Moreover, legislative continuances are granted for such things as “an all-day legislative retreat” in advance of an upcoming regular session or for legislative committee meetings. In Bailey’s case, his family has already paid Jackson $40,000, plus additional payments to a private investigator. Bailey says Jackson has filed only one motion in his case that he is aware of and that she works on his behalf mainy through paralegals and the private investigator.

Those reasons for legislative continuances are pretty broad and can take up a lot of the court’s time and cause endless delays for litigants on both sides. The only winners are the legislators who seem to have a problem deciding if they are lawmakers or officers of the court. Whenever there’s a conflict between the two, it’s the litigants who are the losers. It’s no damned wonder our court dockets are so jammed; creating additional judgeships obviously isn’t the answer when an attorney asks for nine separate legislative continuances in a single case as Kyle Green did in the Ducote-Magette matter. A dozen more judges in that courthouse wouldn’t have helped if the lawyer for one side can’t – or won’t – be there.

In one case, there have been so many legislative continuances that a client dumped his legislator attorney out of frustration. When he sought a refund for non-services by the legislator attorney, his demand was refused. In Georgia, the Georgia House Speaker David Ralston filed 57 legislative continuances in 21 different cases over a two-year period.

And then there is the duo of law partners Michael Melerine and Alan Seabaugh of the Shreveport firm of Seabaugh Sepulvado. Melerine is a state representative and Seabaugh is a state senator.

They are being accused abusing the legislative continuance law which two other Shreveport-Bossier City lawyers say encourages “rampant palm greasing,” according to a story in the Shreveport Advocate. Attorneys Joe Gregorio and J. Cole Sartin are challenging the 1912 law that granted peremptory grounds for a continuance for legislators during legislative sessions.

Gregorio and Sartin and clients who challenge the law dodged a bullet this past legislative session when both the House and Senate unanimously passed SENATE BILL 185 (by Seabaugh, no less) that would have required attorneys who challenge the legislative continuance statute to pay the court cost for the legislators doubling as attorneys in a case. But while the bill passed both chambers without a dissenting vote, Gov. Jeff Landry vetoed the bill just as he had vetoed another bill by Seabaugh’s law and legislative partner Melerine that passed the legislature, one which would have REDUCED PAYOUTS in personal injury cases. (That might lead some to believe that Landry has some sort of personal problem with Seabaugh – but that’s just idle speculation, I’m certain.)

Landry’s hand-picked successor at Attorney General, Liz Murrill interestingly had filed an amicus brief in support of her political ally Seabaugh but Landry still vetoed the bill when it landed on his desk. I don’t know if there was some sort of message there, but…

Of course, the fact that Seabaugh’s firm represents a couple dozen INSURANCE COMPANIES, restaurants and financial institutions was of no consideration in his pushing either of the aforementioned bills. I wonder if anyone has ever bothered to ask Seabaugh if he was elected to represent the citizenry of Caddo Parish or insurance companies and banks – or does he represent legal clients? Just sayin’.

You see, in the case that Gregorio and Sartin found particularly interesting involved a lawsuit against Hanover Insurance over a 2018 vehicle collision. That’s 2018, folks, six years. That’s longer than the lifespan of your typical household gerbil and yet Hanover’s attorneys (…ahem, Seabaugh and Melerine) are still very much alive and delaying a resolution of the case. Or at least they were. Seabaugh has since attempted to withdraw as counsel for Hanover, prompting more charges of delay, delay, delay.

That case is over an auto accident that occurred on June 2, 2018 involving then-minor Steven Harter, Jr., who has since matured into a full-fledged adult but said accident still carries potential exposure to his father, Steven Harter, Sr. The ensuing lawsuit has been delayed so many times that additional judicial interest on any award has been allowed to grow as well as potential bodily injury claims. Still, the case limps along no closer to a resolution than ever.

To give you some idea of how legislative continuances and extensions can drag out a case, this is one, Ducote v. Magette, is about a dispute over an engagement ring and some personal debts following a breakup.

PROCEDURAL HISTORY OF DUCOTE V MAGETTE:

(At all times in this case, Attorney Kyle M. Green, Jr. represented Jeremy Ducote and Attorney Jennifer G. Prescott represented Carley Katherine Magette.)

June 25, 2019 – Jeremy Ducote files a Petition for Declaratory Judgment; Injunctive Relief; and Temporary Restraining Order.

November 4, 2019 – A telephone status conference was held. Several dates for the trial were discussed and passed over since Attorney Green had recently (October 2019) been elected to the Louisiana House of Representatives and would be “in session” for those dates. The case was set for a bench trial on June 23, 2020, with consent of both counsel and after acknowledgement by Attorney Green that he would be ready for trial on that date despite his work in the Legislature.

March 9, 2020 – 2020 Regular Session commences.

March 20, 2020 – Attorney Prescott sets a 10.1 conference with Attorney Green for March 27 for deficient discovery.

March 23, 2020 – Attorney Green files the first Ex Parte Motion for Legislative Continuance and Extensionseeking a continuance of the trial date and all deadlines.

March 27, 2020 – Attorneys conduct the 10.1 conference.

March 30, 2020 – Attorney Prescott files a Memorandum in Opposition to Ex Parte Motion for Legislative Continuance, citing Attorney Green’s waiver of the legislative privilege and the pretrial deadlines that had already passed prior to the filing of the continuance

La. R.S. 13:4163(E)(1)(a) states that “the motion for legislative continuance or extension shall be timely if filed no later than five calendar days prior to the hearing or proceeding to be continued.” .

April 2, 2020 – Presiding Judge denies the motion for Legislative continuance.

April 8, 2020 – Attorney Kyle Green files a second Ex Parte Motion for Legislative Continuance with Incorporated Memorandum in Support. This Order was signed on April 9, 2020, continuing the trial and retroactively continuing all pretrial deadlines.

June 1, 2020 – 2020 Regular Session adjourns and First Extraordinary Legislative Session commences.

June 30, 2020 – 2020 First Extraordinary Legislative Session adjourns.

July 2, 2020 – Carley Magette files a Motion for Status Conference, which is set for a Zoom conference on August 6, 2020 and a Motion to Compel, which is set for a hearing on August 21, 2020.

July 29, 2020 – Attorney Green files a third Ex Parte Motion for Legislative Continuance of the Motion to Compel Hearing stating that August 21, 2020 was 52 days—rather than 60 days—after the adjournment of the First Extraordinary Session.

3 La. R.S. 13:4163(E)(2)(a) provides that a new date must be set sixty dates after the adjournment sine die of the session:

Within seventy-two hours of the filing of a motion for a legislative continuance or extension, the court or agency shall grant the continuance or extension ex parte as follows:

• If the grounds for the motion are pursuant to Subparagraph (C)(1)(a) or (b) of this Section, the continuance or extension shall be granted for a period of not less than sixty days from the date of adjournment sine die of the session of the legislature or of the constitutional convention. Presiding Judge continues the Status Conference and Motion to Compel to September 2, 2020.

September 2, 2020 – Hearing on Motion to Compel, Jeremy Ducote is ordered to fully respond to discovery within 30 days – by October 2, 2020; pretrial Motions set for November 20, 2020; and trial is set for December 22, 2020. A brief status conference is held in chambers.

September 10, 2020 – Presiding Judge signs a Case Management Order pursuant to the September 2, 2020 hearing and status conference.

September 24, 2020 – Attorney Green files a fourth Ex Parte Motion for Legislative Continuance based on the 2020 Second Extraordinary Session. Presiding Judge signs the order with a note continuing the Pretrial Motions and Trial dates and setting a status conference for January 22, 2021

Judge Steven Tureau was elected in the 2020 election and subsequently reset the January 22, 2021 status conference to January 29, 2021. .

September 28, 2020 – 2020 Second Extraordinary Session commences.

October 23, 2020 – 2020 Second Extraordinary Legislative Session adjourns.

October 26, 2020 – Attorneys conducted a 10.1 conference requested by Attorney Green.

January 20, 2021 – Carley Magette files a Motion for Contempt for failure to provide discovery as previously ordered. Hearing set for March 12, 2021.

March 2, 2021 – Jeremy Ducote files a fifth Ex Parte Motion for Legislative Continuance requesting a continuance of the March 12, 2021 Motion for Contempt hearing citing “an all-day legislative retreat in advance of the upcoming 2021 Regular Legislative Session.”

March 3, 2021 – A Zoom status conference is held to discuss the request for continuance and the legislative retreat. The Court found that the retreat was permissive and not mandatory, therefore not subject to the requirements of La. R.S. 13:4163. However, the Court suggested that the matter be submitted on the briefs to allow Attorney Green to attend the retreat. Additionally, the parties picked a trial date of September 3, 2021.

March 25, 2021 – Judge Steven Tureau signs a Bench Trial Order setting the matter for trial on September 3, 2021 with other deadlines and cutoff dates.

April 12, 2021 – 2021 Regular Session commences.

April 26, 2021 – Judge Steven Tureau issues Reasons for Judgment and Judgment on the Motion for Contempt, ordering Jeremy Ducote to fully respond to the discovery by August 13, 2021, and setting a status conference for September 2, 2021.

June 10, 2021 – 2021 Regular Session adjourns.

July 12, 2021 – Jeremy Ducote files a sixth Ex Parte Motion for Legislative Continuance due to the July 20-21, 2021 Veto Session. The Order was signed on July 19, 2021.

July 20, 2021 – 2021 Veto Session commences.

July 21, 2021 – 2021 Veto Session adjourns.

August 2, 2021 – Jeremy Ducote files a seventh Ex Parte Motion for Legislative Continuance. This Order was denied on August 4, 2021 with the Court noting that it “previously signed an identical order.” The Court further reset all motions to October 6, 2021, pursuant to an August 4, 2021 Zoom conference.

August 9, 2021 – Carley Magette files a Motion to Reset the matters previously set for September 2, 2021 to October 6, 2021.

September 15, 2021 – Jeremy Ducote files Motion seeking to compel discovery responses, have facts deemed admitted, and for a new trial on the Motion to Compel. Motion is set for hearing on October 6, 2021.

October 29, 2021 – Hearing on Ducote’s Motion. Judge Steven Tureau takes the matter under advisement.

November 3, 2021 – Judge Tureau issues Judgment with written reasons on Ducote’s Motion.

November 22, 2021 – Jeremy Ducote files Request for Written Reasons for Judgment and Notice of Intent to Apply for Supervisory Writ and Motion for Return Date.

December 5, 2021 – Judge Tureau issues an Order responding to Request for Written Reasons on November 3, 2021 Judgment.

December 10, 2021 – Carley Magette files a Motion to Reset to have the discovery matters heard and set the case for trial, again. Judge Tureau sets this for hearing on February 3, 2022.

December 15, 2021 – Jeremy Ducote files Application for Supervisory Writ with the 1st Circuit Court of Appeal on the denial of the Motion.

December 29, 2021 – Carley Magette files Opposition to Application for Supervisory Writ with 1st Circuit and Jeremy Ducote files Reply Memo.

January 13, 2022 – Jeremy Ducote files eighth Ex Parte Motion for Legislative Continuance for the First Extraordinary Legislative Session of 2022.

January 18, 2022 – Judge Tureau signs Order on Legislative Continuance and continues the February 3, 2022 hearing to August 9, 2022.

February 2, 2022 – First Extraordinary Legislative Session of 2022 convenes.

February 3, 2022 – 1st Circuit Notice of Judgment denying Writs. Ducote v. Magette, 21-1582 (La. App. 1 Cir. 2/3/22), 2022 WL 325354.

February 18, 2022 – First Extraordinary Legislative Session of 2022 adjourns.

March 14, 2022 – 2022 Regular Session convenes.

March 30, 2022 – 2022 Veto Session convenes & adjourns.

June 6, 2022 – 2022 Regular Session adjourns.

June 15, 2022 – 2022 Second Extraordinary Session convenes (Congressional Map).

June 18, 2022 – 2022 Second Extraordinary Session adjourns.

June 24, 2022 – Jeremy Ducote files Application for Supervisory Writ with the Supreme Court of Louisiana with Request for Stay and Oral Argument.

June 29, 2022 – LASC denies Application for Supervisory Writ as untimely with one concurrence. Ducote v. Magette, 22-0996 (La. 6/29/22), 341 So.3d 535.

June 30, 2022 – Jeremy Ducote files Ex Parte Motion for Legislative Continuance with 1st Circuit seeking a retroactive extension of the deadline to apply for rehearing of denial of Supervisory Writ.

August 9, 2022 – Parties have a lengthy status conference with Judge Steven Tureau regarding procedural history of the case and the case is set for a half-day bench trial on November 10, 2022 beginning at 9:00a.m. Attorneys are ordered to submit briefs outlining the discovery issues and procedural history of the case.

September 5, 2022 – Judge Tureau issues written reasons regarding discovery and pretrial deadlines ahead of the November 10, 2022 bench trial.

October 13, 2022 – Attorney Green, sitting as co-chair of the Joint Special Study Committee on Legislative Session, sets the next hearing of the committee for November 10, 2022 at 1:30p.m.

October 27, 2022 – Notice of the Joint Committee Meeting issued by the Clerk of the Louisiana House of Representatives.

November 4, 2022 (Friday) – Attorney Green files ninth Ex Parte Motion for Legislative Continuance based upon the committee meeting.

November 7, 2022 (Monday) – Attorney Prescott files an opposition to the ninth continuance request with expedited hearing requested. Judge Steven Tureau denies the motion the same day.

November 9, 2022 – Attorney Green files Application for Supervisory Writ with the Louisiana Supreme Court after hours. Attorney Prescott files an Opposition to Application for Supervisory Writ.

November 10, 2022 – Louisiana Supreme Court grants the continuance of the trial, which opinion contains three dissents and one concurrence. Ducote v. Magette, 22-1649 (La. 11/10/22), 349 So.3d 984. Trial is reset for November 15, 2022.

November 15, 2022 – Attorney Prescott files first and only Motion for Continuance based on the birth of her third child on November 14, 2022.

Trial is continued to November 30, 2022.

November 30, 2022 – Trial commences. Due to time constraints, recessed to restart on January 6, 2023.

January 6, 2023 – Trial concludes and Judgment is rendered.

At no point during any of these proceedings did Attorney Green reach out to counsel for Magette or the Court in an attempt to amicably resolve any scheduling issues between the case pending before the Court and his legislative duties. Instead, Attorney Green filed NINE continuances, costing the Clerk of Court for the Parish of Ascension, and ultimately other litigants in the Court. Attorney Green flaunted his position with the legislature and intentionally disturbed the November 10, 2022 scheduled bench trial. Several of the motions sought to retroactively extend and/or continue deadlines that had already passed, including the time to respond to discovery, the time to file a Motion for New Trial, and the time to file an Application for Supervisory Writ with both the Appellate and Supreme Courts.

Read Full Post »

There are slow news days and there are slow news days but the story that Associated Press moved this morning must be indicative of a really slow news day – maybe they ran out of stories to do about a certain delusional orange clown.

Regardless, the story was about how the conversion of COW MANURE, aka meadow muffins, aka barnyard frisbees (when allowed to first bake dry in the sun a few days) into fuel as a “growing climate solution.”

My first thought after spotting that headline in my daily morning feed was, I don’t know about the climate change part, but they’re just now discovering that about converting it to fuel?

That second part surely ain’t new. I grew up on a small farm and my grandfather used cow poop and chicken poop extensively as nature’s fertilizer (none of that chemical stuff for him) for our ‘maters, melons, okra, squash, peas, ‘taters and whatever else he was a mind to plant, which gave our vegetables all sorts of energy to grow and produce the biggest, healthiest, most delicious food imaginable – which, of course, was transferred to human energy at our dinner table (that’s lunch to you urbanites – you had lunch and dinner; we had dinner and supper. They’s a difference and they ain’t nothing subtle about it).

We even had a wild plum tree in our back yard where our chickens roosted each night. Best damn plums you ever popped in your mouth (but you had to be careful, Granddaddy didn’t use pesticides, either and the worst thing about finding a worm in your plum was bitin’ into one and seein’ half-a-worm).

I remember a game we used to play as kids called British Bulldog. It was kinda like football in that you had a field and two goal lines but that’s where the similarity ended. It didn’t matter how many kids you had playing; the more the better. The way it worked was one kid was picked to stand in the middle of the field and the others would line up on one of the goal lines. The kid in the middle would yell, “British Bulldog” and the others would run like hell to the other goal. The objective was for the kid in the middle of the field to tackle one of the runners. Then, the two of them would stand in the middle of the field and repeat the process going the other way. The game would continue that way with the number in the middle of the field growing as the number of runners dwindled. The winner would be the last one tackled (if you could call a kid being gang-tackled by about a dozen of his pals a “winner”).

Anyway, the thing I most remember about that game was this one time we were playing it in Allen “Watts” Carpenter’s cow pasture behind his house. We were just starting the game with one guy (who shall remain nameless) out in the middle. When he yelled, “British Bulldog,” we took off.

Now Watts was unquestionably the fastest one among us (he would later set a state record for the high hurdles while running track for Ruston High School). Anyway, as he sped past the unfortunate kid in the middle, the kid dove for Watts and, of course, missed. But he didn’t just miss. He landed a perfect face plant in a fresh pile of the aforementioned meadow muffin and came up dripping from his nose, ears and mouth. Unsurprisingly, the game was over at that point as the rest of us stood around laughing our butts off, as kids are prone to do at those less fortunate. Truth be told, we were laughing more out of relief that it had not happened to us than at his misfortune.

But talk about a conversion to energy! I’ve never seen a kid with such a burst of energy as he ran squalling for home with all that fresh natural fertilizer dripping from his face.

And then there’s that old joke about the bird flying south for the winter. Unfortunately, he started out too late in the season and soon was overcome by the cold and alit freezing to death in a cow pasture. A bull saw him shivering and felt sorry for the poor fellow and, standing over him, deposited a fresh load of natural fertilizer on him. Soon, he was feeling the warmth of the excrement and began to thaw out and feel better. So, he popped his little head out and started singing. A nearby fox heard him singing and came over, dug him out and ate him. The moral of the story is: Everyone who craps on you ain’t necessarily your enemy and everyone who digs you out ain’t necessarily your friend.

The second part of that Associated Press headline was that the conversion of cow flops to fuel may put communities at risk.

Our unfortunate friend in that abbreviated British Bulldog game would certainly agree.

And this was a slow news day for a post.

Read Full Post »