CONTACT PERSON: VALERIE WILLARD
PUBLIC INFORMATION OFFICER
| MAY 8, 2007
FOR IMMEDIATE RELEASE
2007 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 8, 2007, 2:30 P.M. HOUSE CHAMBER
MR. PRESIDENT, MR. SPEAKER, MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES, COLLEAGUES, DISTINGUISHED GUESTS, LADIES AND GENTLEMEN:
On behalf of the Louisiana Supreme Court, thank you for this opportunity to speak to you again on the State of the Judiciary. With me today for this biennial address are Justice Kitty Kimball of New Roads, Justice Bernette Johnson of New Orleans, Justice Jeannette Theriot Knoll of Marksville, and Justice John L. Weimer from Thibodaux. Unfortunately, Justice Jeffrey Victory of Shreveport and 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 me by the President, the Speaker, and all of you for scheduling this address and for my being here today.
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 these State of the Judiciary addresses, which have not only provided the opportunity for me to speak to you but also the opportunity for the other justices to visit you. I believe underlying these visits is a mutual respect for our two branches of state government, and I appreciate that. I also thank you for the courtesy and cooperation that you have shown our Court, our staff, and myself and Justice Kimball, when appearing before you to represent the judiciary’s interest on administrative judicial matters, such as the annual presentation of the judicial branch budget request and on other occasions when we have been invited to appear before one of your Committees.
I last appeared before this body two years ago, in May 2005. Our world has changed dramatically since then. Our state and region have suffered the worst natural disaster in the history of our country. Yet we have survived; and I know with certainty we will prevail. I would like to take a few minutes to let you know the “state of the judiciary” in this post-Katrina world, including our courthouses and especially the actions of the Supreme Court during and after the evacuation period.
About twenty Courthouses were damaged by Hurricane Katrina and Hurricane Rita, and the vast majority of courts have resumed operations in their original courthouses. However, the judges of the 25th JDC Plaquemines Parish are holding court in temporary facilities, and Orleans Traffic and Municipal Courts are still displaced, operating in alternate locations. We are very grateful for the actions of our judges and for the assistance they have received from FEMA, state and local government, and, many others in restoring our courthouse facilities.
Unfortunately, courthouses are only a small part of the essential facilities that comprise the judicial system. Equally important to the criminal justice system are the great many of the buildings housing police departments, crime labs, district attorney’s offices, indigent defender offices, forensic facilities, and other facilities integral to the criminal justice system, and these have not been fully replaced in all areas of the state, especially not in New Orleans. I believe the lack of proper facilities has, unfortunately, adversely affected the criminal justice system.
While many judicial buildings were damaged by Hurricanes Katrina and Rita and their aftermath, I am happy to report that the Louisiana Supreme Court building received only minimal damage, but which required the State to close the building for several weeks after the storm. We returned to the building the first week of December, 2005. We are fully staffed and fully operational, as we have been, since shortly after Katrina.
Turning to our actions immediately after the storm, after Katrina struck and the City of New Orleans was under mandatory evacuation, we operated the Supreme Court in Baton Rouge from August 30th until our return to the City, three months later. In order to stop filing deadlines from running against litigants and their lawyers whose affairs were stymied by Katrina, we issued a closure Order to protect against loss of rights. The Court, however, was not closed. By the end of the first week after Katrina, key personnel had relocated to Baton Rouge and were working daily, along with a majority of our Justices, including Justice Kimball and myself at the First Circuit Court of Appeal. Justice Johnson and Justice Weimer were at the First Circuit several days each week, and several of our Justices labored in their upstate offices. We much appreciated the hospitality and courtesies shown our Justices and staff by Chief Judge Burrell Carter and his colleagues of the First Circuit Court of Appeal.
Because of a voluminous administrative workload and the disruption of the affairs of litigants and lawyers created by the emergency, we deferred action on pending writ applications for several weeks, until November 2005. The Supreme Court was by rule not allowing non-emergency filings for three months. However, the Court was operational, handling the myriad of emergency administrative matters that arose. In addition to our weekly administrative conferences starting in early September, we held oral arguments in the fall in November and held two bar admissions ceremonies at the First Circuit Court of Appeal in Baton Rouge. We also assisted the twenty affected lower courts with the goal of resuming their operations as soon as was feasible.
We secured server space outside of our New Orleans building to enable us to operate the Court’s computer system while in Baton Rouge. We were fortunate to have an outstanding IT staff available, and they worked around the clock to get us operational. Our Court website was of critical importance in communicating not only with our employees, but with courts and attorneys throughout the state. We also worked closely with the leadership of the Louisiana State Bar Association during the storms’ aftermath. The commitment and dedication of the leaders of the Bar during this time were impressive and a credit to our legal community.
The recovery efforts continue through today, and we continue to provide assistance to the lower courts, which are all open, albeit some at temporary locations. Of particular note, I must point out that the Supreme Court is an active participant in the Judicial Committee of the Southeast Louisiana Criminal Justice Recovery Task Force, which has been chaired by our Justice Kimball. That Committee has been a catalyst for cooperative efforts by judges, sheriffs, district attorneys, the police department, and other participants in the criminal justice system in New Orleans. We are also having our state courts prepare Disaster Recovery Plans for future use, and we have prepared and have in place the Supreme Court’s Business Continuity of Operations and Disaster Recovery Plan. I am pleased, and proud, that the state’s judicial system weathered the storm, thanks to the dedication of our judges and judicial employees throughout the state and others. The criminal justice system in New Orleans was particularly hard hit, but it is, perhaps slowly but surely, improving.
Since Katrina, the Louisiana Supreme Court building has served not only as a home for the Supreme Court, the Fourth Circuit Court of Appeal, and other offices, but it also has fulfilled its “multi-use” purpose. For example, since the fall of 2005, the Court has been the venue for nearly a dozen United States House and Senate Committee hearings. Further, in February of this year, we hosted the midyear meeting of the Conference of Chief Justices in New Orleans. Just last week, on Law Day, we officially opened the Louisiana Supreme Court Museum on the first floor of the Courthouse. The operation of the Museum is a project of the Supreme Court of Louisiana Historical Society, a non-profit organization formed several years ago, and modeled after the United States Supreme Court’s Historical Society. We got to thank former Governor Mike Foster and his wife Alice, who were in attendance at the Museum reception in the Court’s multi-purpose building. During his tenure, Governor Foster supported, as did the Legislature, the appropriation of funds necessary to complete the restoration of the Courthouse. Also in attendance at the Museum opening were the descendants of Homer Plessy and a great niece of Judge John Ferguson, a former criminal district court judge in New Orleans. These two were the chief principals in the famous - some might say “infamous” - and socially important case of Plessy v. Ferguson, which originated in New Orleans. The decision in Plessy, which legally established the “separate but equal doctrine”, the legal underpinning for the system of racial segregation, was only reversed by the United States Supreme Court in Brown v. Board of Education a half century later. The Plessy case is the subject of one of the exhibits in the Museum.
Last fall, we held a ceremony memorializing the naming of the square on which the courthouse sits as Judge Fred J. Cassibry Square in accordance with an Act you passed in a previous session. And one more event at the courthouse merits mention. Later this week, the Louisiana Protective Order Registry, which is operated by our Judicial Administrator’s office, will receive the prestigious "Criminal Justice Information Services Division Assistant Directors Award for Outstanding Contribution to State and Local Public Safety" from the FBI (Federal Bureau of Investigation). This is the first court-managed program and also the first of forty-five state registries to receive such an award. According to the FBI, the Louisiana Protective Order Registry is being recognized for its work in maintaining a statewide repository for protective orders, such as those issued in domestic violence cases, and making orders meeting specific criteria available to the FBI National Instant Check System. This ensures that potential gun purchasers, who are also subjects of court issued protective orders, do not receive possession of a firearm.
Now I would like to turn to two other timely issues that deserve mention in this address. Katrina caused many changes in our state, including population shifts and their effect on courts’ caseloads. As you know, the Judicial Council of the Supreme Court was requested in 2006 by your Act 621 of the Regular Legislative Session to study and make recommendations regarding the need for judgeships.
The Judicial Council accepted your charge and set about working on a product that would be presented to this session of the Legislature. With the help of several subcommittees, the Judicial Council prepared and delivered to the legislative leadership by March 1, 2007 as required, its report on judgeships. The findings and recommendations of the report offer the state a practical way to implement a very difficult reform, not just for the immediate situation created by the hurricanes but for all time, and statewide. In its report, the Council is proposing a permanent and practical method for controlling the number of judgeships statewide by employing ongoing data collection, data quality improvement, data analysis, and site visits to determine the number of judgeships that can be reduced, primarily through attrition, with a corresponding need for additional judges in other districts. This major process would begin after the 2008 elections, and can be used to deactivate non-vacated seats preceding elections that otherwise would automatically and constitutionally be called.
The basis of the Council’s recommendations is its belief that unneeded judgeships create caseload and workload inequities and inefficiencies within the judiciary and among judicial branch agencies serving the judiciary. Unneeded judgeships not only involve compensation and funding of the operational expenses of judges but also the compensation and funding of the operational expenses of the judges’ staffs, the assistant district attorneys, indigent defenders, and others involved in the adjudicative process. The funding that goes to unneeded judgeships and related operational expenses could certainly be better used, for example, in funding juvenile justice reform, elementary and higher education, early childhood programs, indigent defense, case management information systems, or any of a number of other needed priorities, many of which are seriously underfunded. Without further funding, juvenile justice reform, and many other priorities are nothing more than promises, promises that cannot and will not be fulfilled without major structural and financial governmental reform.
Reform, however, must be prudent, and deliberate. For this reason, one of the Council’s key findings was that it is premature to attempt to reduce the number of judgeships in time for the elections next year. The Council’s reasons for this finding were:
First, the districts impacted by the hurricanes in case filings have not yet reached a level of stability to determine the number of judgeships needed in those of the 41 judicial districts in the state most affected by Katrina and Rita;
Second, the Council cannot and should not attempt to determine the number of district court judgeships needed without looking at the entire state judicial system, looking at courts besides the 41 judicial district courts, such as city and parish courts, and, perhaps, mayor’s courts, and justice of the peace courts as well;
Third, the Louisiana Council of Juvenile and Family Court Judges has asked that additional factors, other than new filings, be considered in determining the need for judges in juvenile and family courts, and this may have merit;
Fourth, the quality of the data is still not where it should be. The data received from the clerks this year has, in large part, been accurate and the clerks of court as a whole have made a commendable effort to improve and forward the data as requested. However, more work has to be done with the clerks, the district attorneys and the courts to make the data more uniform and accurate. Those courts or clerks producing incomplete or inaccurate data can cause unreliable outcomes in the Council’s study and analysis which may result in recommendations which are unfair to either the particular court under consideration or other courts;
Fifth, Act 621 of the Regular 2006 Legislative Session provides that, if the Judicial Council recommends reductions in the total number of judges, the reductions “shall be done by attrition, unless otherwise provided by law”; and
Finally, the matter of reducing judgeships for the 2008 elections is further complicated by the federal court consent decree authorizing the creation of minority sub-districts.
For the above reasons, the Council has recommended three important legislative initiatives for your consideration. First, the Council has recommended that legislation be enacted at this session to authorize the activation and/or deactivation of judicial seats, such as can be determined by the Supreme Court, perhaps through the Judicial Council. Through the activation/deactivation process, the Supreme Court would, at the time of a vacancy in any judicial office, inform the Governor and the legislature as to whether that seat should be deactivated, that is, temporarily eliminated. If the legislature, by a two-thirds vote, agrees with the need to deactivate the seat, the Supreme Court would not make an ad hoc appointment to fill the vacant seat and the governor would not call an election to fill the vacancy. The seat would be deactivated until perhaps reactivated on the basis of a similar process by which the Supreme Court, after careful analysis and the application of established criteria, determines that the affected court’s workload is such that it warrants re-establishing the seat. The process of activation and deactivation would also be used to determine the number of judgeships needed in each six-year election cycle, beginning in 2014.
Second, the Judicial Council has recommended that the legislature authorize it (the Council) to complete, before the end of 2009, a study of all courts or, at least, all trial courts. Before now, the Council has evaluated the need for judgeships at the district court level without analysis and consideration being given to the workload and funding of city and parish courts in the same district, or throughout the state. The same is true in our evaluations of the need for city and parish court judges. Should we not evaluate these levels of courts together? Does it make much sense to grant new judgeships to a judicial district, perhaps, the city courts in the same parish or district have judges who might make $1 less than district court judges and are able to practice law and to work part-time as judges, with work point values indicating, in some circumstances, less than 20% of a full-time judicial work load? The issue of the number of judgeships, therefore, is inextricably tied to the issues of structure, finance, and workload – all of which have to be considered, especially when reducing or deactivating judgeships.
Third, the Council has also recommended that the legislature ask the Supreme Court to create a committee of judges, clerks of court, and district attorneys to improve the quality of data currently being collected and to define new data elements that may be needed to support the study and investigation of the need for judgeships. One of the Council’s major findings is that the quality and consistency of district court data received from the clerks of court must be improved. The current data problems are not the fault of the clerks of court but the fault of a system that has not clearly defined its needs and allowed sufficient time for the clerks to adjust their systems to report high quality and consistent data relative to these needs. I thank the clerks of court for their positive response in 2006 to my request for data and changes in the method and substance of collection of the data. But more needs to be done and we should address the task collegially and comprehensively in the near future, until we get it right.
The three recommendations contained in the Council’s report are bold actions that are designed to assist the executive and legislative branches in their ongoing efforts to reform government. The Council’s recommendations, however, are limited to a comprehensive study of judgeships that takes structure and financing into account. Perhaps, however, a more comprehensive restructuring is needed. I believe that Louisiana’s government should from time to time consider restructuring some of its judicial structure and financing, to insure that more of the state’s resources are more directly benefitting Louisiana’s citizens, especially our children and families. The issue of restructuring is especially timely, given the hurricane disaster we have experienced and the lessons we should have learned from this tragedy. We all know that restructuring is politically difficult. But it is not impossible, if we, the leaders of this state, have the will to do it. The judiciary stands ready to do its part. And now we await your response.
Let me turn now to the issue of indigent defense. Two years ago I stood before this legislature to implore you to establish an indigent defense system that prevents crime victims from having to relive the horrors of the crime committed upon them, as cases are appealed and retried, sometime more than once, and to protect the innocent from an unfair deprivation of their liberty. I understand that the positive indigent defense reforms enacted two years ago were interrupted as the State dealt with the devastation of Katrina and Rita, the two storms which unmasked some of the long-standing problems of our criminal justice system. The aftermath of these storms highlighted the fact that our indigent defense system has not functioned well, some might say it is broken, but more importantly, that indigent defense is a key component of a fair and functioning criminal justice system. Without an adequately funded and well-managed indigent defense system, the entire criminal justice system suffers. It is true that in reaction to the emergency created by the storms, more money was allocated to our indigent defense system, but unfortunately better management, as well as an increase in funding, is still a critical need. It is time for all of us to make the necessary improvements to our indigent defender system.
At this session you will be considering legislation to create a new statewide indigent defender system. Please help create a system that allows public defenders to have the time, tools and training to present an adequate defense for their clients. Please create a system that gets it right the first time, so that we reduce the costly number of mistrials and re-trials that all too frequently beset the system.
My mission here is not to urge support for any particular bill as filed and/or thereafter amended, although I do understand that at this stage there is a consensus building in support of certain proposed legislation by district attorneys, sheriffs, bar officials, and supporters of improvements in the indigent defense system. I hope that as this legislation moves through the legislative process, this support does not wane.
What I would like to urge you to keep in mind is -- whatever the system you establish, it should respect the independence of the indigent defender system. The American Bar Association has recommended that the public defense function, including the selection, funding, and payment of defense counsel, be independent, to the extent possible. I believe an ideal indigent defender system would respect the independence of indigent defender boards as well as the lawyers who are assigned to handle cases. However, at the same time, the system must respect the judges’ role in the criminal justice process, including their prerogative, and indeed their responsibility, to run their courtrooms fairly and efficiently, and to make the legal calls required by our laws and the Louisiana and United States constitutions.
I am encouraged with the change I am seeing in how the Legislature goes about the business of building consensus around important criminal justice issues. There is value to leaving the adversarial process in the court room, and coming together as judges, prosecutors, defense attorneys, and law enforcement officials to have rational and reasoned discussion about best practices and how best to use limited taxpayer resources to ensure the public safety.
I thank the House Criminal Justice Committee, under the leadership of Representative Daniel Martiny, for including the Louisiana District Attorneys Association, the Louisiana Trial Judges Association, the Louisiana State Bar and others a place at the table to inform and offer perspectives on how best to ensure the state's constitutional duty to provide the right to counsel. What the process shows is that an adequately funded uniform system of public defense does not make one soft on crime or against victim's rights, but rather, it shows that public defenders are necessities, an integral part of a fair, objective and workable system of justice.
In conclusion, thank you Senator 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 you serve, the citizens of Louisiana.