PUBLIC INFORMATION OFFICER
STATE OF THE JUDICIARY ADDRESS TO THE
JOINT SESSION OF THE HOUSE AND SENATE
LOUISIANA LEGISLATURE BY
PASCAL F. CALOGERO, JR.
CHIEF JUSTICE, SUPREME COURT OF LOUISIANA
TUESDAY, MAY 3, 2005, 2:00 P.M. HOUSE CHAMBER
PRESIDENT, MR. SPEAKER, MEMBERS OF THE HOUSE AND
SENATE, COLLEAGUES, DISTINGUISHED GUESTS, LADIES AND
On behalf of the Louisiana Supreme Court, thank you for this
opportunity to speak to you again on the State of our Judiciary.
With me today for the biennial trek for our Court are Justice
Kitty Kimball of New Roads, Justice Bernette Johnson of New
Orleans, Justice Jeffrey Victory of Shreveport, Justice Jeannette
Theriot Knoll of Marksville, and Justice John L. Weimer from
Thibodaux. Unfortunately, Justice Chet D. Traylor
of Winnsboro could not be with us this afternoon.
It is an honor to appear before you again. I sincerely
appreciate the courtesies shown by the President, the Speaker,
and all of you for scheduling this address and for being here
today. As I look around the chamber of this assembly,
I see many friends of longstanding who have given invaluable
assistance to the judiciary, and friendship to me personally,
during the times that my duties as Chief Justice have
brought me to this building. Earlier this month, I marked
my 15 th year as Chief Justice and I thank each of you for
your courtesy and friendship.
Of course, I am saddened as I look around this room that several
of my friends, and your colleagues, are no longer with us,
including the incomparable John Hainkel.
On behalf of the Justices, I offer our sincerest condolences
on the untimely loss of Senator Hainkel, Senator Ronald C.
Bean, and Representative Charles I. Hudson.
One of the goals during my tenure as Chief Justice has been
to improve communications between the judicial and legislative
branches of government. One such step has been holding
these State of the Judiciary addresses, during which the Justices
travel to Baton Rouge to visit with you. I believe underlying
these visits is a mutual respect for our respective branches
of government, and I thank you for that. I also thank
you for the respect, courtesy and cooperation that you show
Justice Kitty Kimball and me, and our staff, every year, upon
presentation of the judicial branch budget requests, and sometimes
other legislation that affects the judiciary.
This mutual respect of our two branches is based on a recognition
that the Legislature and the Judiciary are two separate, but
equal, branches of government. Our federal and state
constitutions enshrine this separate yet equal principle.
This principle is meaningless and ineffective without
maintenance of an independent judiciary. Although a
judge in our state may be elected, his or her allegiance is
owed to the Louisiana Constitution and to the rule of
law, not to the rule of the majority. It is the
duty and the responsibility of each judge in this state to
apply the constitution and laws to the facts before him or
her, without fear or favor. A judge cannot be partisan,
despite which way political winds may be blowing. An
independent judiciary is a hallmark of our democracy, and
we should take whatever steps are necessary to respect and
preserve this independence.
One of the key elements in a functioning judiciary is our
jury system. To commemorate Law Day 2005, this first
week in May has been designated "National Juror Appreciation
Week", a time to honor and celebrate jurors and the jury system.
The American Bar Association, the Conference of Chief Justices,
and courts throughout the country are devoting special time
to recognize the contributions of jurors and to promote jury
service. Your Supreme Court has adopted a resolution
urging all state courts to take steps to recognize Law Day
2005 and to plan activities celebrating our jury system.
At the Supreme Court, we are offering resources for these
activities, and have scheduled several events such as speaker
presentations and visiting student tours of the Courthouse.
If any of you has served on a jury, let me thank you.
If not, if, and when, you get called for jury duty, I urge
you to serve. Not only would you be fulfilling
the highest responsibility of citizenship and making our system
of justice a reality, I guarantee you an educational and eye-opening
experience and an unparalleled view into the workings of our
criminal or civil legal systems.
For the first time since I began appearing
before this August body, or one or more of your committees,
I am pleased to announce that the Louisiana Supreme Court
is occupying the newly renovated Supreme Court building at
400 Royal Street, nearing the end of its first year of occupancy.
I cannot thank you enough for your diligence and support in
making our move to the renovated courthouse possible.
As you know, the new courthouse houses not only the Louisiana
Supreme Court, but also the Court of Appeal - Fourth Circuit,
the Louisiana Law Library, the Judicial Administrator's Office,
an office for the Attorney General, and office space for the
Executive Branch. And needless to say, we have a Formal
Conference Room and other facilities available for your use
in the event you choose to schedule a Committee or other meeting
at 400 Royal Street.
I was delighted that many of you were able to be with us at
our dedication ceremonies last Fall. In addition to
the Legislators who were in attendance, dignitaries from across
the state who participated included Governor Kathleen Blanco,
Lt. Governor Mitchell Landrieu, Attorney General Charles Foti,
Jr., and Commissioner of Administration Jerry Luke LeBlanc.
The highlight of the ceremony was the Keynote Address by United
States Supreme Court Associate Justice Sandra Day O'Connor.
Early next year, we will host the mid-year meeting of
the Conference of Chief Justices, and we are looking forward
to showing the building to our colleagues from across the
country. If you have not visited the building, I urge
you to do so to see the fruits of your endeavors.
In compliance with the spirit and the letter of the legislation
which designated the square of property on which the Courthouse
sits as "Judge Fred J. Cassibry Square," we have seen to the
manufacture of the appropriate markers, which will be installed
at two opposite corners of the city block.
Now that we have moved into the building, the Courthouse has
been formally dedicated, and landscaping is nearly complete,
we have scheduled the square dedication ceremony for this
This legislative session has been the second occasion where
our Judicial Council, at your request, has reviewed legislation
proposing new court costs to ascertain if such imposition
of additional court costs or fees appropriately affects court
operations. We believe that it is not our function to
approve or reject proposed legislative initiatives or
policies, but rather, to focus on the impact on the courts
of legislation that imposes court costs and fees
upon litigants, the users of the court system. Such
legislation directly affects the operation of, and access
to, the court system. We hope to perform this
job consistent with the purpose of the legislation that entrusted
the Judicial Council with these duties, and hope that
you will accept the recommendations of the Judicial Council
in the vein that this counsel and advice is given.
If you feel that the Judicial Council's involvement in this
process is more intrusive on your prerogative as legislators
than it should be, we stand ready to respond to your legislative
call, just as we are attempting to do in accordance
with the extant legislation. I know the Judicial Council
can be of assistance in this area, and I do believe that,
as instituted, the system serves a plausible purpose, both
for the legislative and the judicial branches of government.
I also wish to thank the legislature in advance for its consideration
at this session, or as soon as is practically possible, of
the need for higher levels of judicial pay.
I fully realize that at this legislative session there
are many other fiscal matters of great importance to consider
and resolve. However, do remember that adequate
pay and financial security are two factors that contribute
greatly to assuring a fair, impartial, and independent judiciary.
Since my last address two years ago, the Court has continued
its work to improve the administration of justice in our state.
One such area is juvenile justice reform, where the level
of inter-branch and inter-agency collaboration has been unprecedented,
and I thank you for your continuing investment in the at-risk
children and families in this State. Locally,
our judges are taking an active part in the development of
their local Family and Youth Planning Boards, and many are
effectively using court-based programs for children and families
such as the FINS (Families in Need of Services), CASA (Court
Appointed Special Advocates), and Drug Court
programs administered by the Supreme Court. The cost-effectiveness
of such community-based programs is demonstrable. For
example, in the last year, screened, trained, and supervised
community CASA volunteers contributed the equivalent of $11.2
million dollars of their time, facilitating placement of abused
and neglected children by taking them out of state care
and placing them into safe and permanent homes. I am
sure the CASA folks at the capital today are available to
provide you with additional information.
Great strides have been made toward real systemic reform in
our juvenile justice system, and I encourage you to maintain
the momentum. As demands on your time and attention
are many during this session, I would specifically ask for
your attention to, and support for, these efforts that directly
impact the future of our children.
You will soon be receiving a copy of our 2004 Annual
Report, providing more detailed information on these,
and many other, judicial reforms.
This session, you will also be asked to consider legislation
affecting our system of funding legal services for citizens
charged with a crime but unable to pay for their own lawyers
and legal defense. In fact, hearings have already begun
on proposed legislation. Today, I ask you for your continued
assistance in reinforcing and actualizing one of the most
important rights provided to citizens by our federal and state
constitutions - the right to counsel.
Over forty years ago, in the landmark case of Gideon v.
Wainwright, the United States Supreme Court stated:
" The right of one charged with crime, to counsel may
not be deemed fundamental and essential to fair trials in
some countries, but it is in ours. "
In this case, the Court ruled that the right to counsel for
those unable to afford one is a fundamental part of due process
in America. The Court held that the U.S. Constitution
guarantees that no person shall be denied his life or liberty,
without the guiding hand of effective counsel at every stage
of criminal proceedings, simply because he is too poor to
hire a competent lawyer. Soon after the Gideon
decision, the Louisiana Constitutional Convention of 1974
enshrined the right to counsel in Article 1, section 13, making
this right to counsel a state constitutional right, as well
as federal. The right to counsel that was
solidified in Gideon in part evolved out
of the law's understanding that wrongful convictions destroy
trust in the system; and the law is best served when we get
the process right, from the start.
Our federal and state constitutions provide that people without
financial means should not be put in jail without due process
of law. In this case, due process means the affording
of effective assistance of counsel. It falls upon you
as Legislators to speak for the State in fulfilling these
constitutional obligations. It is never a popular
political position to spend money on what some people see
as a "social program for criminals." Viewed in a different
light, however, our state and federal constitutions impose
a constraint on the manner in which the State can deny a person
his freedom. I will not comment on this
bifurcated perception, but I will tell you that the Louisiana
Supreme Court is charged with administering a judicial system
that comports with these constitutional provisions.
So when we are asked to review the propriety of a criminal
prosecution where the defendant does not have the financial
means to afford counsel, and this constitutional right has
been abridged, we cannot dodge the responsibility of enforcing
We were faced with this issue in the early 1990s, and as a
result, following the principles enunciated in Gideon
v. Wainwright , we handed down the cases of State
v. Peart and State v. Wigley , in which we
determined that indigents were receiving assistance of counsel
not sufficiently effective to meet constitutional standards.
In an attempt to resolve this problem, with the cooperation
of all three branches of government, in 1994, the Supreme
Court established by rule a temporary statewide Louisiana
Indigent Defender Board. Initial legislative funding
for this Board was $7.5 million. As planned, in 1998,
the Supreme Court relinquished jurisdiction over the Board,
at which time it was transferred to the Executive Branch,
with the creation of the Louisiana Indigent Defense Assistance
Despite inflation and increases in the volume of criminal
cases, and some minor monetary increases over time, the monies
allocated to indigent defense remained fairly static over
the years. Against this background, our Court was faced
with the recent cases of State v. Citizen and State v.
Tonguis, two consolidated capital cases. In an
opinion authored by Justice Jeffrey Victory, he concluded
for the Court that the present indigent defense system is
terribly flawed. While it is not within the purview
of the Court to direct how much money should be appropriated
by you on indigent defense, providing adequate funding is
clearly a legislative responsibility. In this opinion,
we recognized that until you, the legislature, take remedial
action, we must address the immediate problems of defendants
in forthcoming capital prosecutions securing constitutionally
adequate counsel, in a constitutionally and statutorily required
timely manner. And therefore, we decreed that unless
adequate funds are available in a manner authorized by law,
upon motion of the defendants the trial judge may halt the
prosecution in these cases until adequate funds become available
to provide for these indigent defendants' constitutionally
protected right to counsel.
This recent opinion does not unfairly put the courts in the
position of siding with the defense. The cases simply
recognize the fact that the courts, as guardians of a fair
and equitable process, must not let the state take a person's
liberty without due process.
We have together taken steps in the past to make the right
to counsel real and meaningful in Louisiana. Unfortunately,
these efforts have not proven to be adequate.
Much more needs to be done. The need for further action has
been well articulated by the Task Force on Indigent Defense
Services that you, the Louisiana Legislature, created one
year ago, and which is chaired by Senator Lydia Jackson.
I understand that the Task Force has submitted two bills for
your consideration, and that hearings on these bills are underway.
I also am aware that there are differences of opinion on these
bills. People may differ in their view of how to fix
the system, and how the LIDAB Board should be structured.
I respect such differences. However, I would caution
that such differences of opinion should not be allowed to
thwart this unique - and necessary - opportunity
to fix our ailing indigent defense system, - a system that
represents eight out of ten defendants in this state - and
to put the State on the correct path to complying reasonably
with its constitutional duty.
I am also here to ask you and the Task Force to explore
ways to reduce the need for indigent defense and,
therefore, to reduce its costs, while still protecting the
public. This can be done, in my opinion, in several
ways, such as developing more strategies for diverting cases
from the formal system, through early intervention juvenile
diversion programs, or through such adult diversionary strategies
as the expanded use of drug courts, shoplifting programs,
traffic and misdemeanor probation programs, mental health
perspectives in courts, and other forms of adult diversion. Further,
strategies should be explored to reduce the number of re-trials
made necessary by faulty police line-up and photo spread
procedures, inappropriate of out-moded interrogation
procedures, unaccredited and under-funded forensic laboratories,
and other sources of wrongful conviction. (As an aside,
the advent of DNA testing as a reliable forensic tool has
produced over the past few years in this country the release
of upwards of 200 persons convicted of serious crimes.)
Several years ago, I appeared before you and urged a call
to action to address the deplorable state of our juvenile
justice system. You responded, quickly and effectively,
and our state is on its way to real juvenile justice reform.
I ask you to do the same with indigent defense. We owe
it to our citizens, especially to the victims of crime, to
do what we can to insure that convictions are obtained that
will survive the appellate process and constitutional challenge.
As a Supreme Court Justice, I must be an advocate of compliance
with the mandates of our state and federal constitutions,
and therefore, I admonish you, simply, to do the right thing.
Provide for a workable and adequately funded indigent
defense system, so that another victim does not have to go
through the agony of an overturned conviction and repeat of
grueling trial testimony, or so that an innocent person is
spared the ordeal of an unjust conviction and punishment.
This is just one of your many challenges, as well as your
responsibility. Let us show the people that our State
is more than up to that challenge.
In conclusion, let me again say what an honor and privilege
it is to be before you today. We greatly appreciate
your courtesies. On behalf of the state judiciary,
thank you President Hines, Speaker Salter, and all of
you, the dedicated members of our state Legislature, for opening
your chamber to us today, for your attention to my remarks,
and for your unfailing devotion to the people of Louisiana.