Backlash against efforts by La. Supreme Court to turn back the clock intensifies
25th June 2012 · 0 Comments
By C.C. Campbell-Rock
The first missive fired by what critics are calling a renegade Louisiana Supreme Court, (LSC), to aid Associate Justice Jeffery P. Victory in jumping ahead of Justice Bernette Johnson, to become the next Chief Justice of the Louisiana Supreme Court, came in the form of two orders issued by the court’s Chief Justice Catherine D. “Kitty” Kimball.
With a stroke of her pen, Chief Justice Catherine Kimball unleashed a flood of déjà vu and a firestorm of protest over who will assume the Chief Justice seat when she retires in 2013.
Both orders are unprecedented and questionable.
Acting under the authority of Article V of the Louisiana Constitution of 1974, Kimball wrote, “…Considering that contrary legal positions have been expressed on the issue of who will succeed to the office of Chief Justice of the Louisiana Supreme Court upon the retirement of present Chief Justice Catherine D. Kimball on January 31, 2013…It is hereby ordered that any sitting Justice interested in a legal determination of this matter may file with the Clerk of Court, no later than July 31, 2012,” for the purposes of determining who is Chief Justice of the Louisiana Supreme Court as of February 1, 2013, and which Justice is the “judge oldest in point of service.”
In her second order, Kimball recuses Justices Johnson, Victory, and Knoll from any decision about the chief justice job and she appoints three senior judges from the Circuit Courts of Appeal as Justices ad hoc to decide who is the “judge oldest in point of service,” and who will be the chief justice when Kimball retires.
However, Justice Kimball’s orders begs the question: Exactly how is the Louisiana Supreme Court going to prove that Justice Bernette Johnson is not next in line for the office of Chief Justice, when the Louisiana State Constitutional and the federal government affirms her full rights to the same benefits as every other LSC Justice?
“The justices do not comment on cases in litigation but the Court might write something by August 15,” said Valerie Willard, LSC’s publicist.Attorney William Quigley, a Loyola Law School professor and director of the Gillis Long Poverty Law Center at Loyola, was one of the lead attorneys in the landmark Ronald Chisom et. al. v. Charles R. Roemer, Governor of Louisiana, et.al. He said, “The law has been clear for 20 years. The Louisiana Supreme Court decided that it wanted to create a way so that no one had to leave the Court, so they extended the Supreme Court to eight members. The law itself is very specific. Eight justices treated and considered equal in every way. Justice Johnson has served the longest. We can surmise that the two justices after her claim that because she was a Supreme Court justice by virtue of Act 512, that somehow she was not truly a Supreme Court Justice.”
A quiet, modest man, Quigley has seen a lot of injustice during his civil rights work. And he gets the 411 on the most closely held agendas.
“Supporters of Justice Victory are trying to find loopholes. They have encouraged the Court to ignore the law. Justice Johnson has already served the longest, though.”
Quigley said Justice Johnson’s opponent wants to wrest power from her. As Chief Justice, Justice Johnson will be over the entire Louisiana State Court system. She will be responsible for hiring and firing, assigning cases, and implementing her vision for improving the state’s highest court. “I think they should call off the fight, honor her and make her the chief justice.”
Some Justice Johnson supporters say Chief Justice Kimball has no authority to do what she’s doing.
Attorney Ron Wilson, a co-counsel in the Chisom v. Roemer case, said, “You’d like to put litigation aside. She (Justice Johnson) has been here the longest; since 1994. The law doesn’t ask, ‘How did you get here?’
“She has the longest term of services on the court. Based on both the Louisiana Constitution and the federal consent decree, signed off on by the state, Justice Johnson is due to become Chief Justice effective the day Kimball retires, Wilson explained.
“Although Justice Kimball appointed a panel to make a determination about her successor, there is no authority for impaneling. The Constitution clearly spells out who the chief justice should be and that person is Justice Johnson,” he concluded.
“I don’t think they have a strong argument, “said Attorney James William, Justice Johnson’s lawyer. The only argument they have is not credible. Because Justice Johnson was elected to the federal Chisom Seat. Because Justice Johnson’s seat came about because of the struggle for equal representation? She has tenure pursuant to the federal Consent Decree and the Louisiana Constitution.
“Justice Johnson is being challenged because she’s an African-American. She will become the first African-American Chief Justice of the Louisiana Supreme Court. I don’t believe this challenge would be made if Justice Johnson wasn’t an African-American,” he said. Williams is a former law clerk for Justice Johnson.
Cedric Floyd, a demographer, is an expert on the practice of gerrymandering. He was one of three team members who came together and launched the fight for equal representation on the Louisiana State Supreme Court. Speaking from the road, Floyd said, “What Justice Kimball did was illegal. Why do you need an ad hoc court panel to decide who has served on the court the longest?”
Floyd said he has never heard a case starting at the state Supreme Court, the court of last resort. “Whoever will be the parties, we will start at our district court.”
Plaintiffs, Litigants, and Supporters Ready to Rumble
So, instead of planning a major celebration — August 21, is the 20th Anniversary of the landmark Chisom v. Edwards landmark court case, the federal Consent Decree, and Louisiana Act 512, that brought unparalleled diversity to the LSC and the U.S. judiciary — justice advocates are ready to defend the law and Justice Johnson’s rights.
Ronald Chisom, the landmark case’s namesake, said of the new challenge, “It’s not surprising. That just shows you how structural racism is involved. Justice Bernette Johnson has credibility. She’s moved up the ladder and it is in the law that she is next by all rights.
“I got involved (in lawsuit) because every time a Black would run, it would be from a white district. When you have decisions made at the state level, we need someone who can better understand your cultural background. Those decisions can affect your life,” Chisom said.
“We elected Justice Johnson not just to see a Black face but also a person to represent us. I don’t see a minority judge; I see a justice, period. “
Chisom, the founder of the People’s Institute for Survival & Beyond and an expert in undoing racism, said requests for the nonprofit’s Anti-Racism Training Workshop have increased.
“She’s been challenged since Day One. It should be the end of this.”
NUL President & CEO Marc H. Morial, a former New Orleans mayor, played an integral part in the historic battle for equal judicial representation on the courts. Then-State Senator Morial chaired the plaintiff committee in Chisom v. Edwards and co-sponsored Senate Bill 1255, which became ACT 512, which became the state law in 1992.
“Justice Johnson’s presence on the Louisiana Supreme Court in 1994 represented a victory over Louisiana’s dark history of racial gerrymandering,” said Morial. “Invalidating her years on the Court not only would be an affront, it would be an outright breach of federal law…”
“The seat Johnson won in 1994, while technically on the 4th Circuit Court of Appeal, was afforded all the rights, privileges and emoluments of any seat on the state Supreme Court under both a federal consent decree and ACT 512 of the 1992 Louisiana Legislature. The legislation was intended to remedy a racially discriminatory judicial election system. That includes seniority,” Morial said.
While there were no plans for litigation at press time, Johnson’s lawyer said, “We will challenge any efforts to deprive voters of the opportunity to have the first African-American Chief Justice of the Louisiana Supreme Court.”
“For the Supreme Court even to countenance that anyone other than Justice Johnson is the rightful Chief Justice is surprising, illogical and blatantly illegal,” Morial added. The former mayor was on the State Senate team that negotiated the settlement with then-Attorney General Richard Ieyoub and members of the Supreme Court. The Justice Department of then-President George H.W. Bush signed off on the arrangement which gave the seats the full rights of a Supreme Court judgeship.
“The Chisom Consent Decree represents a hard-won victory for equality under the law and those of us who fought that battle will not stand by and see the rights of citizens trampled,” said Morial.
“This is clearly about power. I hope Justice Victory’s supporters withdraw gracefully. If not, they’re in for a huge fight,” Quigley concluded.
THE MAKING OF A LANDMARK COURT DECISION
Before Chisom v. Edwards, the Louisiana Supreme Court District lines were gerrymandered to exclude Black representation on the state’s highest court. By 1986, there had never been a Black on the then-173-year-old state Supreme Court.
The LSC had an all-white panel of seven justices representing six districts. Justices Pascal Calogero and Walter Marcus Jr., both represented District 1, which encompassed Orleans, Jefferson, St. Bernard and Plaquemines parishes.
Although African Americans comprised 62 percent of the Orleans Parish population, when added to the gerrymandered District 1, the Black voting population fell to 30 percent. The dilution of Black voter strength ensured that an African-American could not be elected to the Louisiana Supreme Court.
Failing in their attempt to get the Louisiana Legislature to voluntarily reapportion the state Supreme Court, Ronald Chisom, et.al. v. Charles E. Roemer, Governor of Louisiana, et.al. was filed on September 18, 1986 by attorneys William Quigley, Ron Wilson, and Roy Rodney.
It would take six years, three gubernatorial administrations, and hundreds of thousands of dollars before justice proponents won the fight for equal representation on the state’s highest court.
In order to settle the Chisom lawsuit, plaintiffs, state officials and federal officials, compromised to protect the status quo.
As a result, LSC Justices Pascal Calogero and Walter Marcus Jr. kept their seats in the gerrymandered 1st District. To effect immediate equal representation on the LSC, a temporary “Chisom Seat,” was added to the Fourth Circuit Court of Appeal. And an eighth temporary seat was added to the Louisiana Supreme Court. Both seats were set to expire in 2000.
The person elected to the Chisom Seat would be immediately seated on the Louisiana Supreme Court. Only seven justices would be empaneled at a time. Both seats would expire in 2000, when the new single district containing only Orleans Parish would emerge.
The late great civil rights attorney, Justice Revius O. Ortique Jr. took the bench in 1992. He served one and a half years before retiring at age 70.
Justice Johnson was elected to the LSC via the Chisom Seat in October 1994.
Her bench was barely warm in early 1995, when Attorney Clement F. Perschall, Jr. filed a lawsuit against the State of Louisiana challenging the constitutionality of ACT 512. Perschall, a second-generation attorney, said his father taught him that the Constitution was sacred. So he believed the addition of an eighth seat on the LSC, albeit temporary, was illegal. Perschall lost his case at both the district and appellate level.
Ironically, the Louisiana Supreme Court gave Perschall a hollow victory on July 1, 1997, when it declared Act 512 “unconstitutional in its entirety.”
1992 victory came at a high price
The compromise worked great for Justices Calogero and Marcus. Calogero became Chief Justice and earned the distinction of serving the longest—36 years—on the LSC. He retired in 2008. Marcus served 31 years and retired in 2000. He passed away in 2004.
In 2000, the temporary seats were phased out and New Orleanians finally had their own Supreme Court District.
But for Judge Johnson and whoever may represent District 7 in the future, the attempts to turn back the clock to the days of voter disenfranchisement is an ongoing threat.
“We should not be turning back the clock on voting rights or racial justice in Louisiana and that is effectively what supporters of Justice Victory are trying to do,” Quigley said.
Justice Johnson, the first and only African-American woman to serve on the state highest court, has been on the LSC longer than any other sitting justice (other than Kimball who was elected in 1992). Justice Johnson has served the LSC for the past 18 years.
No matter the challenge, it is clear that Justice Johnson is truly a good steward of her district.
Justice Johnson was re-elected without opposition in 2000 and 2010. She also served as interim Chief Justice during Kimball’s prolonged bout with illness. Her service on the LSC expires in 2020.
As a testament to her legal acumen and civic and community service, Justice Johnson has received awards every year that she has been in the judiciary.
She was honored by her law school in 1996, when her portrait was unveiled and she was inducted into the LSU Law Hall of Fame. Her alma mater Spellman College presented her with an Honorary Doctorate in Law. In 2010, she was inducted into the Louisiana Justice Hall of Fame and into the National Bar Association Hall of Fame, just to name a few.
Her civic work includes prison re-entry initiatives at St. Gabriel Women’s Prison, and she sits on numerous boards and commissions.
Associate Justice Jeffery P. Victory, the wannabe Chief Justice, was elected to represent District 2 on the LSC in1995. His current term expires in 2014.
Even if he got his heart’s desire, he would only serve two years as Chief Justice before having to run again.
It’s no surprise that there is a conspiracy to stop Associate Justice Bernette J. Johnson, the first African-American woman on the Louisiana Supreme Court (LSC), from taking her rightful place as the next chief justice. But it is surprising that educated people think they can blatantly disregard federal and state laws that created the “Chisom Seat” and somehow bypass Justice Johnson, whose election to the Fourth Circuit seat was the conduit for her justice position on the LSC.
This is Louisiana, after all.
Our state has a long history of racial discrimination, gerrymandering, plantation politics, and Black voter suppression.
Louisiana and New Orleans have played host to several landmark legal battles for justice and equality. From Plessy v. Ferguson, which legalized racial segregation in 1896, to the Voting Rights Act of 1965 (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia are still monitored to prevent voter disenfranchisement), to Major v. State of Louisiana, to the gigantic landmark Chisom v. Edwards case, which brought judicial elections under the protection of the Voting Rights Act and paved the way for African Americans to serve on the highest courts in the U.S.
This new challenge smacks of white privilege. This is what happens when white supremacy ideations run amok.
The term white supremacy is used in academic studies of racial power to denote a system of structural racism which privileges white people over others, regardless of the presence or absence of racial hatred
It’s the same old song…again.
Chisom v. Edwards created the “Chisom Seat,” on the Fourth Circuit Court of Appeal. According to the Consent Decree, the person elected to fill the Chisom Seat, would transfer over to the Louisiana Supreme Court. The late Justice Revius O. Ortique Jr. became the first African-American to sit on the Louisiana Supreme go straight to the Louisiana Supreme elected to that seat immediately become a Louisiana Supreme Court or the express purpose of the elected a conduit for the first African-American to sit on the State Supreme the caveat that the person elected to that seat will 1992 federal Consent Decree, state law, and settlement negotiations,
Both orders smack of injustice and shady acts. Justice Johnson, the first and only African-American woman to serve on the state highest court, has been on the LSC for the past 18 years. She earned her tenure from 1994, through several uncontested re-elections and she also served as interim Chief Justice during Kimball’s prolonged bout with illness. Her service on the LSC expires in 2020. Justice Victory was elected in 1995 to represent District 2 of the LSC.
This article was originally published in the June 25, 2012 print edition of The Louisiana Weekly newspaper