United States v. Louisiana

751 F. Supp. 608, 1990 U.S. Dist. LEXIS 14746
District Court, E.D. Louisiana·Decided October 30, 1990·No. Civ. A. Nos. 80-3300, 90-4109·Published·Cited by 5 cases

Opinion

OPINION AND ORDER ON THE REPRESENTATION OF THE STATE

CHARLES SCHWARTZ, Jr., District Judge.

This case is before the Court on the motion of the Attorney General of the State of Louisiana to Designate Counsel for the State and Withdraw Designation of Additional Counsel [Record Document No. (R.Doc.) 517A]. Civil Action No. 90-4109 is also before the Court on the motion of the Attorney General to remand to state court [R.Doc. 9]. The Attorney General seeks to prevent the Governor of the State of Louisiana, acting through Special Counsel John N. Kennedy and associates Joseph J. Levin, Jr. and Carla Calobrisi,1 from appearing in these proceedings. For the following reasons, the Court DENIES both motions.

I.

In 1974, the United States filed this case, alleging that the State and other defendants were violating Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment to the Constitution of the United States. In 1981, the parties entered into a Consent Decree in an attempt to resolve the issues before the Court; by December 31, 1987, when the Consent Decree was to expire by its own terms, there was a volley of countering complaints that the State had not lived up to its obligations and that the Consent Decree was fiscally impossible to fully implement.

Because, in the final analysis, the Consent Decree presented an unworkable “band-aid” type solution to the enormous problems in Louisiana public higher education and because no party took any action to extend or substantially amend the decree before its expiration, the litigation returned to “square one,” with all issues reopened. See United States v. Louisiana, 692 F.Supp. 642, 647-49 (E.D.La. 1988). Following several conferences, it was determined that the Court could resolve the case most expeditiously by addressing liability first and then, if any was found, to proceed with the time-consuming process of fashioning a remedy.

Accordingly, on May 13, 1988, the United States and one of the defendants filed cross-motions for summary judgment on liability. On June 6, 1988, Mr. Guste’s Assistant Attorney General Winston De-Cuir filed an opposition to that motion. - See R.Doc. 249. On August 2, 1988, the Court found liability, see United States v. Louisiana, 692 F.Supp. at 653-58, and thereafter proceeded to address the issue of remedy. That June 6th paper was the last the Court heard from the Attorney General in any material respect, until after the case at the trial level was effectively concluded, as is detailed more fully below.

In January 1988, a new Governor, Charles E. “Buddy” Roemer III, took of[612] fice. He had promised, among other things, a political agenda for reform of higher education. The Attorney General and others apparently briefed him on the lawsuit; to show that the new Governor was given notice of the State’s defense and substantially agreed with its content, John N. Kennedy, the Governor’s Special Counsel, co-signed the State’s memorandum in opposition to the United States’ summary judgment motion. See R.Doc. 249.

At that time, Mr. Kennedy was not enrolled as counsel in the case and did not actually participate in the State’s defense nor in the preparation of the memorandum. Matters soon changed, however, when the case entered its remedy phase; the Governor, acting through Mr. Kennedy, took a highly active role in the case, including at almost all conferences in chambers with all counsel who desired to appear. The list of court appearances by Mr. Kennedy forms a stark contrast to the list of purported appearances of the Attorney General’s staff, which, as indicated below, amounted to receiving mail and silently attending several status conferences.2

In November 1988, Joseph J. Levin, Jr. was also retained to represent the State with Mr. Guste’s knowledge and explicit consent. Thereafter, on January 18, 1989, Assistant Attorney General DeCuir filed a motion formally requesting this Court to admit John N. Kennedy, Joseph J. Levin, Jr., and Carla Calobrisi (Mr. Levin’s associate) as additional counsel to represent the State; the Court granted the motion and designated Mr. Kennedy as lead trial attorney, Mr. DeCuir as local attorney, and Mr. Levin and Ms. Calobrisi as additional counsel. See R.Doc. 319A.

Mr. Kennedy’s participation in this case, which began in early 1988 and continues to this day, has included the submission of formal filings to the Court, as well as his active participation at hearings, status conferences, depositions, settlement conferences and negotiations, and similar related meetings. After he became involved in the case, Mr. Kennedy, along with Mr. Levin, took the lead in the State’s representation, drafting documents, filing motions, conducting discovery, attending hearings, and presenting evidence on behalf of the State, all with the tacit approval of the Attorney General.

The period from August 1988 through July 1989 was the most active period in this litigation. Throughout this period, numerous hearings and court conferences were held, including proceedings before the Special Master on the issue of remedy. Yet the Attorney General’s office took what may be generously described as a passive role. Assistant Attorney General DeCuir attended most of the conferences before the Court, but absolutely no filings were received nor was any active part taken by the Attorney General himself or his office. As the Attorney General’s own submissions reveal, his office was included on the Court’s mailing list and received copies of all papers filed by other attorneys. His attempt to classify as appearances before the Court the appearance of his office on mailing lists and certificates of service is, to say the least, misleading to a reader unfamiliar with this case. Such contentions highlight a focal problem in this case: [613] the Attorney General refused to do any more than sit idle, receive mail and then, on the eve of the finality of an order that would have largely completed the case at the District Court level, complain of the Court’s refusal to rule as the Attorney General deemed appropriate.

On July 19, 1989, following innumerable hearings on the issue of remedy and the costly appointment of a Special Master, this Court issued its Opinion and Order on remedy. By then, termination of the ease was long overdue, especially considering the time, effort, and taxpayer money expended and the Court’s perception of certain parties’ power-mongering to the detriment of equal educational opportunity. After the entry of this Remedial Order and just before the expiration of the period to request relief under Rule 59, Attorney General Guste emerged; to the Court’s utter surprise and having never indicated that he espoused a position contrary to those he appointed to represent the State, he attempted an effective reversal of the State’s position on remedy. Specifically, on August 2, 1989, after this Court had issued its Remedial Order and while Governor Roemer was out of the country, Mr. Guste filed a post-trial motion, entitled “Notice to Join in Motion of the Southern University Board of Supervisors for a New Trial and/or Motion to Alter or Amend Judgment.” See R.Doc. 499.

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United States v. Louisiana, 751 F. Supp. 608, 1990 U.S. Dist. LEXIS 14746 (E.D. La. 1990).

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