Forget the ads: Big oil vs. trial lawyers is real fight in Louisiana Supreme Court race
Oct. 27-- Oct. 27--Advertisements in the runoff for an open seat on the Louisiana Supreme Court show candidates Will Crain and Hans Liljeberg grilling on patios, schmoozing on sidewalks, and of course, commanding courtrooms.
One backdrop that has yet to make an appearance: Louisiana's coast.
Though the state's eroded shoreline is absent from campaign materials, it is the straw that is stirring the Supreme Court race, at least when it comes to raising and spending money. Big Oil and trial lawyers have spent years in a tug-of-war for control over the state judiciary, and the Crain-Liljeberg runoff is proving to be yet another proxy fight between them.
Whoever wins the Supreme Court seat vacated by former Justice Greg Guidry next month will almost certainly be opining on some of the state's most expensive and potentially consequential lawsuits: those filed by Louisiana's southernmost parishes and some private landowners, seeking big money from oil and gas companies to help restore land lost to or damaged by energy exploration.
The rulings on those suits could lead to gargantuan payouts for coastal restoration and land cleanups, and rich paydays for the plaintiffs' attorneys. They could also cost oil and gas companies hundreds of millions of dollars -- in fact, the mining company Freeport-McMoRan Inc. last month announced it would pay up to $100 million to mitigate damages it caused, the first major settlement of such a case.
With these issues in play, in a state that elects its judges, Supreme Court campaigns are often funded by either the lawyers or the oil companies. But in some cases, heavy spending by one side has backfired, as crafty lawyers cite it as evidence of bias.
"The tenor has changed in recent judicial elections," a three-judge panel of the Louisiana Third Circuit Court of Appeal wrote earlier this year, explaining its decision to force the recusal of a judge who had criticized trial lawyers. "Now, special interest groups are pouring large sums of money into judicial campaigns, especially on the Supreme Court and appellate level, hoping that the candidate they are backing will side with their particular philosophy when deciding cases and issues before them."
Several judges -- including Supreme Court Justices Jefferson Hughes III and retired Justice Jeannette Knoll -- have similarly been forcibly recused by their peers from cases involving oil and gas companies.
The companies faulted Hughes for receiving hefty financial support from Talbot, Carmouche and Marcello, a law firm that's been pursuing environmental damage cases against oil and gas companies for years. They argued Knoll shouldn't be able to consider their cases because her husband, a plaintiff's attorney, had sued oil and gas companies.
Their recusals -- and others in lower courts -- raise questions about whether piling on money for a preferred Supreme Court candidate is in fact a sound strategy.
Knoll argued there's an unfair double standard, with judges backed by trial lawyers getting more scrutiny than those elected with support from the influential Louisiana Association of Business and Industry.
"The hardest agenda that I've seen in my 20 years on the Supreme Court is always driven by LABI, the oil and gas industry," Knoll said in a recent interview. "When you're backed by LABI, you're expected to vote their agenda, and that's not true for trial lawyers."
But Bo Staples, director of LABI's political action committee, said his organization's backing should not be seen as evidence that a judicial candidate has pledged to rule a certain way.
"I would never think that we could buy off anybody," Staples said. "Most everybody that runs for judge will readily admit that they're going to be impartial. Having elected jurists, the downside of that is having to raise money to win."
WINNING FORMULAS
Baton Rouge attorney John Carmouche upped the ante in the high-stakes fight for control over the Supreme Court in 2012. He's been getting the best of LABI's judicial candidates since then.
A winning ingredient for Hughes, a Republican, was support from the Carmouche-backed political action committee, Citizens for Clean Water and Land. Court filings said the PAC spent nearly half a million dollars supporting Hughes in 2012 as he campaigned on a platform meant to appeal to Louisiana conservatives: "pro-life, pro-gun, pro-traditional marriage."
Carmouche, who describes himself as a religious man who likes to hunt, said it was Hughes' conservative message that resonated with him -- not the judge's views on Carmouche's massive pending lawsuits against oil and gas companies.
One of Hughes' 2012 campaign mailers acknowledged that oil and gas suits had become "the biggest driving force" in the race, at least in terms of money. But in the ad, Hughes sought to downplay the suits' importance, assuring voters that he had never ruled on an oil and gas legacy suit before, and that no one knew if such suits would even reach the Supreme Court.
Left unpersuaded were business, oil and gas operatives. LABI, known for generally favoring Republicans, took the unusual step of backing Democrat John Michael Guidry in the runoff.
Guidry is black, and the NAACP later complained that some of Hughes' campaign materials played that up in seeking to persuade voters that Guidry would team up with Chief Justice Bernette Johnson -- also a black Democrat -- to liberalize the court.
Hughes won with 53% of the vote.
The next Supreme Court election didn't require a campaign: Justice Scott Crichton, a Shreveport Republican who received LABI's endorsement, ran unopposed in 2014.
Carmouche's clout had risen even more by the 2016 race, when his law firm followed a similar playbook to the one it used in the Hughes race. The firm backed a PAC called Restore Our Coast, which raised nearly $1 million, mostly from plaintiff's lawyers, to support Jimmy Genovese. He won the southwestern Louisiana district with 51% of the vote against the LABI-endorsed candidate, Marilyn Castle.
"You do wonder sometimes why one person or one entity would invest so much in one race," said Staples of LABI.
As he did with Hughes, Carmouche has said his support of Genovese was unrelated to the judge's views on his lawsuits. He said he supported Genovese out of frustration in his dealings with Castle, referencing her decision -- later upheld on appeal -- to toss out a civil suit he filed over a Lafayette Parish Sheriff's deputy who pleaded guilty to six counts of aggravated rape.
This time around, Crain and Liljeberg have raised more than half a million dollars apiece, with the runoff still weeks away. And again, it's clear how the major interest groups view the two men -- both moderate to conservative Republicans, on paper.
Crain's campaign has received endorsements and contributions from LABI, oil and gas associations and other industries. Liljeberg has the help of the Carmouche firm's new PAC, Citizens Fighting Crime, plus dozens of plaintiffs' lawyers donating directly to his campaign.
The PAC raised $280,000 to support Liljeberg's campaign in the primary election. Some of its television spots depict masked men shattering car windows and breaking into homes, while female crime victims extol "law and order judges," such as Liljeberg.
Carmouche insisted by email that his interest in the race -- and his support for Liljeberg -- centers on crime, not his coastal and legacy lawsuits. He said he's worried about protecting his family, and that Liljeberg's background as a prosecutor gives him comfort.
"It might not be juicy and it might not be news, but that is why I am involved in this race," Carmouche wrote.
Crain and Liljeberg each said in interviews that their histories on the bench show they will not be beholden to campaign donors. Each promised to apply the law impartially if elected to the Supreme Court seat, which includes most of Jefferson Parish, a sliver of Orleans, and the entirety of St. Tammany, Washington, Tangipahoa and St. Helena parishes.
Guidry, the Republican both candidates are vying to replace, was recently appointed to the federal bench. LABI backed Guidry's election in 2008 to the seat that had been held by longtime Chief Justice Pascal Calogero, a Democrat who LABI repeatedly tried to oust but never succeeded. He retired on his own terms.
UNINTENDED CONSEQUENCES
The oil and gas industry didn't change its view of Hughes after voters elevated him to the Supreme Court. When landowners alleging damage from oil exploration filed writs in 2015 with the Supreme Court, the oil companies argued that he and Knoll were too conflicted to consider the writ applications.
A majority of justices agreed and forced the two to sit the matters out. The Supreme Court -- without votes from Hughes and Knoll -- then denied the plaintiffs' writs. Their recusals may not have made a difference, as only one justice, John Weimer, voted to granted writs.
But Knoll punched back in a scalding dissent.
"I have been a jurist for 32 years, and my integrity and my ability to be fair and impartial to the litigants has only been questioned by this special interest group," she wrote.
Hughes hit back in another forum: He sued his fellow justices in federal court, alleging they violated his First Amendment rights by forcing his recusal. He argued in federal court that his recusal differed significantly from a key 2009 U.S. Supreme Court case on the issue.
In that case, in a 5-4 ruling, the U.S. Supreme Court ordered a judge on West Virginia's highest court off a case involving a litigant who shelled out more than 60 percent of the judge's campaign contributions, about $3 million. Hughes argued that his support from trial lawyers wasn't nearly that dominant in his 2012 contest. He said in court filings that his own campaign's spending of $590,000 -- including $250,000 that Hughes chipped in to his own campaign fund -- exceeded the $487,000 that the PAC spent to support him.
Hughes declined to comment for this story.
Blaine LeCesne, a Loyola Law School professor who specializes in torts, said the stakes for coastal lawsuits have grown so high that they've incentivized both trial lawyers and oil and gas companies to fight harder and spend more money for control over the Supreme Court.
"A major but unavoidable flaw of our electoral system of electing judges is the potential for stealing judicial outcomes through targeted campaign contributions," LeCesne said. "It's nothing new, but there are particularly exigent circumstances on the horizon."
Big business' preferred candidates have also faced attacks over their reliance on industry backing.
Castle, for instance, ran a flier during her well-funded 2016 Supreme Court campaign that questioned the motives of personal injury lawyers who donated to the pro-Genovese PAC. Lafayette-based Broussard and David was among the targeted law firms.
Years later, Broussard and David asked to recuse Castle from a pending case, arguing she had proved her bias against them. The Third Circuit Court of Appeals agreed in May, ordering Castle's recusal.
"It is implausible that this client, or any reasonable client under the circumstances, could have trust and confidence in the impartiality of the trial judge when the sitting trial judge hearing her case has published such an ad directly naming and attacking her attorneys," the Third Circuit decision reads.
IMPLICATIONS FOR THE SUPREME COURT'S FUTURE
Neither Crain nor Liljeberg has hinted about to how they might rule on cases involving oil and gas. Though the way the money is flowing seems to offer a clue, both have pledged to treat all parties equally.
Crain said "there's no doubt" that business interests have aggressively supported his campaign, but he said he was running for the seat before securing their support.
"I believe that what people saw when they scrutinized my record was a judge that was not attached to any interest but attached to the rule of law, who kept the field level for lawyers and people who came into the court system and didn't have a finger on the scale," Crain said.
Liljeberg said he's trying to persuade voters that his background as both a prosecutor and civil attorney uniquely qualifies him for the seat.
"I don't pick my supporters; they pick me," Liljeberg said. "But they'll get what everyone has gotten for the past 17 years, which is justice."
Whoever is elected may determine whether the Supreme Court revisits a past ruling that limited the scope of legacy lawsuits against oil and gas companies.
The Supreme Court decided the "subsequent purchaser rule" in 2011, which held that those who buy land that was damaged before they purchased it cannot sue the parties responsible for the damage. Instead, the court said, those who purchase damaged property should hold the sellers responsible by negotiating lower prices or rescinding sales.
The 4-3 ruling was a win for the oil and gas industry, as it narrowed the number of people who could sue over their destruction. But the court's makeup has shifted since then, and two of the original dissenters, Justices Bernette Johnson and John Weimer, remain.
The Supreme Court had a chance earlier this year to review a case that invoked the past ruling, but a divided court denied the writ. Genovese, Hughes and Weimer said they would grant it, indicating their willingness to re-examine the rule. Johnson was in the majority that denied the writ, as was Guidry. One more justice would have tipped the scales.
If such a case would return to the Supreme Court, those who align with business groups have raised questions about how Liljeberg's dependence on Carmouche would affect his rulings.
"There would be a concern if he were elected that all of the trial-lawyer support and money that he's received would make it difficult for him to be fair and balanced in his positions on legacy and oil and gas lawsuits," said Jim Harris, coordinator for the Louisiana Coalition for Common Sense that pushes for tort reform.
He said Crain presents fewer concerns because "he's getting money from all over the place, not just from one sector of the business community."
Oil and gas operatives portray themselves as under siege. They blame a "judicial hellhole" for driving away industry.
Louisiana Oil and Gas Association President Gifford Briggs told supporters at a recent luncheon that Texas businessmen had bemoaned to him, "we cannot drill a well in south Louisiana because we are terrified of Carmouche."
But LeCesne, the Loyola professor, said the notion that Louisiana's trial lawyer climate and coastal lawsuits are scaring away energy companies is "the brightest-colored fish in a school of red herrings."
"This has nothing to do with (being) an overly litigious state," LeCesne said. "This has to do with the people of Louisiana finally seeking some legal recourse for the compromised coast caused by a profit-making venture at their expense."
