Green's Indictment is "Cloud Overhead"

The Times-Picayune reports on the atmosphere around the 24th JDC after news broke of Judge Alan Green's possible indictment related to Operation Wrinkled Robe.

Alexander Appeal in Court Today

The Advocate reports that oral argument is scheduled for today in Rodney Alexander's appeal. "Alexander was a longtime Democrat who filed to run for re-election as a Democrat on Aug. 4, then refiled as a Republican two days later, just before the deadline to sign up for the race."

Mississippi Supreme Court Orders Severance In 264-Plaintiff Asbestos Suit

(The following will be slightly off-topic for a Louisiana-law blog. If you're not one of the many Louisiana lawyers involved in Mississippi asbestos litigation, please forgive this little foray across the Pearl or Mississippi River.)

Yesterday the Mississippi Supreme Court handed down an important ruling in a suit by 264 plaintiffs against 137 defendants, alleging various exposures over a 75-year period at around 600 workplaces. The complaint failed to state "which plaintiff was exposed to which product manufactured by which defendant in which workplace at any particular time." The Court, finding this situation intolerable, ordered severance as to each plaintiff, and ordered dismissal without prejudice of the claim of each plaintiff who, within 45 days, fails to provide defendants and trial court with sufficient information for the trial court to determine the appropriate court and venue for transfer, that minimum information being the name of the defendant(s) against whom each plaintiff makes a claim, the time period and location of exposure. Harold's Auto Parts, Inc. v. Mangialardi, No. 2004-IA-01308-SCT, slip op. (Miss. Aug. 26, 2004).

Unfortunately, you can't download a copy of the decision from the Court's web site. But not to worry; Naked Ownership can fix that -- to download, just click
here.

Profile of NOLA Juvenile Court Candidates

The Times-Picayune profiles the five candidates vying for a seat in Section C of the Orleans Parish Juvenile Court: David Bell, Sandra Cabrina Jenkins, Yolanda King, Kim O'Dowd, and Robin Shulman.

LASC Eliminates Slidell Candidates

The Times-Picayune reports that the Louisiana Supreme Court reversed Judge William Burris of the 22nd JDC and the First Circuit Court of Appeals to hold that two candidates in a Slidell City Court race are not eligible for office because they will not have five years of experience on the day of the general election.

Group Wants Victory Off the Case

The Advocate reports that the Forum for Equality Protection has filed a motion seeking to have Louisiana Supreme Court Justice Jeffrey Victory disqualified from hearing the marriage amendment case because of comments he made during a campaign stop at Higher Ground Ministries in Mansfield earlier this month.

More Charges in Operation Wrinkled Robe?

The Times-Picayune reports that federal prosecutors have written a letter to 24th JDC Judge Alan Green indicating that they are planning to file a grand jury indictment against him on possible charges of racketeering, conspiracy and mail fraud.

Juvenile Justice Program Moves Forward

The Advocate reports that Governor Blanco's effort to reform Louisiana's juvenile justice system is back on track after the state has renewed negotiations with the Annie E. Casey Foundation.

New-Blawg Announcement

Last weekend I made the last entry in Rain Man and launched a new blog, Rain Man 2, on TypePad. The topics will be the same: legal writing, music (mostly blues), web sightings, and anything else that's on my mind. Unlike the old blog, the new one features comments, trackbacks, and RSS feed (which should please Ernie).

Amendment Banning Same-Sex Marriage Will Appear on Sept. 18 Ballot, First Circuit Rules

Yesterday the First Circuit affirmed dismissal of a suit seeking to prevent a proposed constitutional amendment from appearing on the ballot for the September 18 primary election. The amendment would define marriage as the union of one man and one woman. In response to the plaintiffs' suit, Secretary of State Fox McKeithen pled an exception of prematurity, arguing that the Election Code permits a challenge to a proposed constitutional amendment only within 10 days after the election has occurred. Since the election hasn't occurred yet, plaintiffs' suit is premature, McKeithen argued. The trial court agreed with McKeithen, maintained the exception, and dismissed the suit. The First Circuit affirmed, finding "no provision in the Election Code for a pre-election challenge to the placement of a proposed constitutional amendment on a ballot."

(For Naked Ownership's prior report on this case, click here.)

Haggerty and Lobello Can Run for Slidell City Court Judgeship

Today the First Circuit affirmed a trial-court decision allowing Bryan Haggerty and Vincent Lobello to run for judge of Slidell City Court. Charles Branton challenged Haggerty's and Lobello's candidacy on grounds that they were not qualified for the office because neither had practiced law for five years when he qualified for the race. Branton relied on La. R.S. 18:492(A)(3), which provides the general rule that a candidate for public office must possess the necessary qualifications on the date the candidate qualifies for the election. But the trial court dismissed Branton's petition, holding that another statute, La. R.S. 13:2487.2, trumps R.S. 18:492(A)(3). Section 13:2487.2 specifies that the judge must be licensed to practice law in Louisiana for at least five years before the election. The First Circuit affirmed, adopting the trial court's holding as its own.

(For Naked Ownership's prior report on this case, click here.)

Assumed-Duty Doctrine Applied

In Graves v. Riverwood International Corp., decided August 18, the Second Circuit applied the assumed-duty doctrine as enunciated on May 25 by the Supreme Court of Louisiana in Bujol v. Entergy Corp. Mr. Graves, a paper-mill employee, died of mesothelioma. His survivors sued Olin Corp., whose subsidiary owned the paper mill. They alleged that Mr. Graves was a third-party beneficiary under a contract between Olin and the subsidiary under which Olin allegedly agreed to provide industrial-hygiene services to the subsidiary. The Second Circuit affirmed summary judgment in Olin's favor under a contract theory, but reversed under the assumed-duty theory, holding that plaintiffs were entitled to introduce evidence that Olin voluntarily assumed a duty to Mr. Graves to protect him from asbestos exposure.

Merits Ruling Before Class Certification Okay

In Clark v. Shackleford Farms Partnership, decided August 18, the Second Circuit held that, in a putative class action, a trial court may decide defendant's motion for summary judgment before deciding class certification. "Whereas there is abundant jurisprudence standing for the proposition that it is improper for the trial court to consider the merits of a case in a class certification hearing, we find no jurisprudence that holds that it is improper for the trial court to consider the merits of the case prior to a class certification hearing. Therefore, although it would be erroneous for a trial court to look to the merits of the underlying action as one of the factors in making its determination about whether a class should be certified, it would not be improper to do so in the case sub judice, because there has not been a class certification hearing."

Third-Party Claimant Cannot Rely On Entire Policy Contract Statute

Under La. R.S. 22:628 (the "Entire Policy Contract Statute"), any change to an insurance policy must be in writing and either attached to the policy or explicitly incorporated into the policy by reference. In Watts v. Thurman, decided August 20, the Second Circuit holds that a third-party tort claimant who sues the tortfeasor's insurer cannot rely on the insurer's failure to comply with R.S. 22:628 to defeat the insurer's motion for summary judgment denying coverage.

Millions Owed in Back Child Support

The Shreveport Times reports that over $110.6 million is owed in past-due child support in Caddo, Bossier and Webster Parishes. The article details the Deadbeat Parents Punishment Act, which was enacted this year.

BR Judge Seals Settlement

The Advocate reports a bizarre story concerning a dispute among board members of the Special Children's Foundation, Inc. The suit, filed by one board member, alleged that the board chairman "had unilaterally shifted the philanthropic focus of [the charity] from helping mentally retarded adults to getting a building named after himself at LSU." 19th JDC Judge Janice Clark sealed the settlement, which apparently requires the Special Children's Foundation to donate almost $500,000 to five charities.

Learn about federal court from the law clerk's perspective

A new FBA seminar, Inside Chambers: A Conversation with Federal Career Law Clerks, will be held on Friday, October 1, 2004, 2:00-4:30 p.m., in Judge Lemelle's courtroom, 500 Poydras Street, Room C501. The moderator of the seminar will be Judge Kurt Engelhardt.

This seminar will be a one-of-a-kind opportunity for new-to-intermediate level attorneys to gain valuable information about the practical aspects of federal-court litigation from the unique perspective of the judges' law clerks. Registration forms are available at the New Orleans FBA website.

High Stakes Telecom battle in Lafayette

A battle is shaping up in the City of Lafayette over who should control the telecommunications infrastructure in that city. There are obviously existing telecommunications companies who have been doing business in Lafayette and some believe they are the natural choice to control telecommunications in Lafayette. But, as this BayouBuzz article explains, there is a movement afoot to make the telecommunications system as public as possible.

Alexander Suit Moves Slowly

The Shreveport Times reports that US District Judge Frank Polozola will have a meeting in chambers with the attorneys involved in the Alexander dispute this Friday.

Lee's Public Defender Speaks

Tommy Thompson, the public defender who represented Derrick Todd Lee, believes that Lee's case may end up before the US Supreme Court, reports The Advocate. Thompson says that obtaining Lee's DNA with a subpoena was a violation of Lee's constitutional rights. The article details several other concerns of Thompson.

Thimerosal Manufacturer Not a Vaccine Manufacturer, U.S. 5th Cir. Holds

"The Vaccine Act [42 U.S.C. § 300aa-1 et seq.] is a remedial program designed to provide swift compensation to persons injured by vaccines, while ensuring that the nation's supply of vaccines is not unduly threated by the costs and risk of tort litigation. To that end, victims of a 'vaccine-related injury or death,' ... are barred from seeking redress in the courts unless they have first filed a claims for recovery in a specialized Vaccine Court." In Moss v. Merck & Co., the Fifth Circuit rejected Eli Lilly's attempt to bring itself under the Vaccine Act's protection. Eli Lilly manufactured Thimerosal, a mercury-containing preservative used in several childhood vaccines. The Mosses alleged that their daughter developed autism because of mercury-containing vaccines. Eli Lilly persuaded the district court to dismiss the Mosses claims against it, but the Fifth Circuit reversed.

Slidell Judicial Race Stakes Raised

The Times-Picayune reports that Chuck Branton, a Slidell lawyer, has filed suit challenging the qualifications of two candidates running for a seat on the Slidell City Court. Branton alleges that Bryan Haggerty and Vincent Lobello haven't been licensed to practice law for at least five years. Both candidates were licensed on October 15, 1999 and they are part of an eight-person field.

Because one of the eight candidates running for Slidell City Court judge could theoretically secure the seat without a runoff election, their fifth year must start before the Sept. 18 special election, [Branton] said

State Judge William Burris of the 22nd Judicial District in Covington will hear the case Wednesday.

3 Left in Orleans CDC Race

The Times-Picayune reports that Kelly McNeil Legier has withdrawn from a race for a seat on the Orleans Civil District Court bench. Her withdrawal leaves three candidates vying for the seat that was vacated when Hunter King was removed from the bench by the Louisiana Supreme Court. The remaining candidates are: Paulette Irons, Bernadette D'Souza, and Marie Williams

Grand Jury to Hear Wright Case

The Town Talk reports that a Rapides Parish grand jury will determine whether or not charges made by a park ranger are sufficient to indict state Representative Tommy Wright on charges of obscenity. Wright was arrested after a Buhlow Lake park ranger told deputies he saw the men engaged in sexual activity inside a public restroom at the recreation area on August 9.

Gay Marriage Amendment Battle Continues

The Shreveport Times reports that 19th DC Judge Mike Caldwell ruled that a lawsuit challenging Louisiana's proposed gay marriage act is premature. Nonetheless, all signs indicate that the issue will be before the Louisiana Supreme Court before the election on September 18.

Wagner's DNA Claims Dismissed

The Advocate reports that US District Judge Frank Polozola has adopted the recommendation of US Magistrate Stephen Riedlinger and dismissed a lawsuit filed by Floyd Wagster, Jr. that alleged the East Baton Rouge Parish Sheriff's Office illegally coerced him into providing a DNA sample during the hunt for Baton Rouge's serial killer. The suit was dismissed because it was filed a year and five days after Wagster provided the DNA sample--five days too late. Jill Craft, an attorney for Wagster, unsuccessfully argued that the search wasn't complete until the DNA was actually tested.

Alexander Suit Goes to Polozola

The Advocate reports that US District Judge John Brady recused himself from hearing a lawsuit filed against US Representative Rodney Alexander. The case was reallotted to US District Judge Frank Polozola. The case was removed from state court last Friday and the removal has been called nothing more than a delay tactic by Chris Whittington, an attorney representing the state Democratic Party and plaintiff Jeremy Lacombe in the case.

LADB Recommends Disbarment

The Advocate reports that the Louisiana Attorney Disciplinary Board has recommended the disbarment of Broderick DeJean of Opelousas.

The committee said DeJean has made arrangements to make restitution out of an eventual recovery of attorney's fees in a pending case. The committee said he commingled and converted roughly $148,000 in funds from his clients and third parties.

Prestige Plates Ruling Expected Soon

The Shreveport Times reports that a ruling is expected by the US Fifth Circuit Court of Appeal regarding Louisiana's prestige license plate program. The article details the effect that U.S. District Judge Stanwood Duval's decision has had on the state's program and the funds it generates.

Fight Over Gay-Marriage Amendment Continues

The Advertiser reports that Judge Michael Caldwell is scheduled to hear arguments today in a suit filed by Forum for Equality. The group is challenging a proposed constitutional amendment that seeks to ban same-sex marriages in Louisiana.

The article also notes that Orleans Civil District Judge Christopher Bruno blocked the planned vote on the amendment in a similar case on Friday, but has suspended his order to allow the state to appeal directly to the Louisiana Supreme Court.

Young Man Changes Law

The Town Talk profiles 17-year old Michael Barker who successfully fought to change Louisiana's Freedom of Information Act. Specifically, Barker succeeded in convincing the legislature to remove a requirement preventing anybody under the age of 18 from accessing public records.

Lee Sentencing Set for Today

The Advocate reports that convicted killer Derrick Todd Lee is scheduled for sentencing today. Lee was convicted of second-degree murder, which carries a mandatory life sentence.

NASA Lawyer Heading Home

The Times-Picayune profiles Paul Pastorek, a New Orleans native, who recently resigned as NASA'a chief counsel. "Several people said Pastorek's return to New Orleans as a private lawyer with Adams and Reese could reap dividends for the Michoud Assembly Facility, which makes space shuttle external fuel tanks in eastern New Orleans."

Yankee Boy Bashes Louisiana Legal Traditions

Rufus T. Firefly, author of Running with Lawyers, has been bashing some of Louisiana's legal traditions lately. Last month, he decried Civil Code Article 2318 as an "abomination." I was going to let that one go (after all, as a defense lawyer, I don't want to go on record defending a strict-liability statute). But last week, he wanted to boot us out of the USA for putting our court filings on legal-size paper. And to think that as recently as July 1, he though our "Napoleonic Code" was "cool" (proving that everything he knows about Louisiana law he learned from Streetcar Named Desire). What's going to happen when he finds out about the Ursuline nuns?

Anyway, there it is. Louisiana lawyers, what do you think?

Does the ACLU Know About This?

Today I ran across a quaint statute, R.S. 13:3668: "No member of the religious order called the Saint Ursuline Nuns, established in the City of New Orleans, shall be compelled by any writ or process whatever to appear in any court to give testimony or be examined as witness in any court whatever, but the deposition of such member shall be taken in the convent of the Ursuline Nuns, under such rules, regulations and restrictions as are prescribed for the taking of testimony when the witness resides in any other parish than that in which the suit is pending." I didn't see a similar provision for the Poor Clares or the Dominicans -- does that raise Equal Protection issues?

Defendant in Maritime Suit May Demand Jury Trial

In Spencer v. DOTD, No. 2003-CA-0539, decided August 11, the First Circuit held that, under the current version of La. C.C.P. Art. 1732, a defendant in a maritime personal-injury suit may demand a jury trial. Thus, the trial court committed reversible error by severing, for a separate bench trial, the plaintiff's claims for maintenance and cure. The plaintiff filed her amended petition seeking maintenance and cure after the defendant had filed its answer and jury-trial demand. Nonetheless, the defendant had demanded jury trial on "all issues," and thus was entitled to jury trial of issues raised by the later-filed amended petition.

In a companion decision, Spencer v. DOTD, No. 2003-CA-2849, the First Circuit held that the plaintiff could not squeeze under the $50,000 threshold for a jury trial by severing her claims for separate trials. After the trial court had conducted the bench trial of plaintiff's maintenance and cure claims, plaintiff tried to avoid a jury trial of her remaining claims by stipulating that those remaining claims were worth less than $50,000. The First Circuit held that the defendant's right to jury trial depends on the total value of all plaintiff's claims against the defendant.

Monroe School Board Release Records

The News-Star reports that its extensive legal fight with the Monroe City School Board proved fruitful yesterday after the board released details and records related to its search for a new superintendent.

Indigent Defense System in the News

The Times-Picayune reports on a lawsuit that will challenge Louisiana's indigent defense system and the Shreveport Times reports that Louisiana's funding of the system is "far short of what national experts consider minimal [requirements]."

NOLA Lawyer, Court Worker Indicted

The Times-Picayune reports that Glenda Spears, a new orleans lawyer, and Angela Kirkland, a former drug court counselor, were indicted by a federal grand jury on charges of computer fraud. The charges are related to an alleged bribery scheme where the two women offered freedom to probationers in exchange for cash.

Lawsuit Filed to Challenge Alexander

The Shreveport Times reports that Christopher Whittington, a Baton Rouge attorney, has filed a lawsuit that challenges the legality of US Representative Rodney Alexander's recent party switch. The plaintiff, Jeremy Lacombe, says: "'The code is clear that he can't do it. It's just a question of law' that will be reviewed during a hearing at 4 p.m. Friday in Iberville District Court in Plaquemine, the 5th Congressional District courthouse nearest the state Capitol."

Subdivision Wetlands Permit Struck

The Times-Picayune reports that US District Court Judge Jay Zainey has voided a federal wetlands permit for the first phase of a proposed Covington neighborhood because the US Army Corps of Engineers failed to adequately address the environmental impact of the development.

Orleans has new Juvenile Judge

The Times-Picayune reports that Orleans Parish Juvenile Judge Anita Ganucheau announced she will retire after 25 years on the bench. Accordingly, her only challenger for the bench, Louis F. Douglas, will take her seat in Section E of the court. "When pressed, Ganucheau said that while Douglas' entrance into the race wasn't a factor in her retirement decision, 'the fact that he is a capable person just probably made it easier for me to come to my decision.'"

Great Tips on Google

AJ Levy, of Out-of-the-Box Lawyering, has posted a great paper on out-of-the-box ways to use Google. I fancy myself a pretty solid Google searcher and I still learned a lot. Here's a teaser:

If you want to expand your search by adding alternative words in your search, Google has a command that tells Google to search for synonyms. To use it, place a ~ (a tilde) in front of the words that you want to have Google automatically search for synonyms. Thus, ~attorney would search for attorney as well as lawyer.

This is definitely a feature that Westlaw should provide to further expand the utility of headnotes.

Lee Juror Speaks

The Advocate provides a report indicating that DNA evidence convinced the West Baton Rouge jury that found Derrick Todd Lee guilty of murdering Geralyn DeSoto.

Judge Reluctantly Approves I-49 Expansion Route

The Advertiser reports the US District Court Judge Tucker Melancon has issued a ruling finding that the Federal Highway Administration complied with applicable law when siting the 1-49 expansion through Lafayette. “The issue before the Court ... is not whether the undersigned judge would have placed the proposed Interstate 49 as it will traverse Lafayette where it was placed; he would not have,” Melancon wrote.

Karla Raettig, staff attorney for the Tulane Environmental Law Clinic, which represents the citizens coalition, said Melancon’s conclusion is not ordinary.

“It’s not normal for an opinion to have a conclusion like that where, basically, the judge says I think this is a bad idea, but it’s not illegal,” Raettig said. “To me, that’s a pretty significant message for the judge to have put in the opinion.”

The decision will be appealed by the Concerned Citizens Coalition.

Summary of Amendments Facing Louisiana Voters

The Shreveport Time reports on the Constitutional amendments facing Louisiana voters this fall. The article focuses on the "high-profile issue of prohibiting the recognition of any marriage or civil union except those between one man and one woman and prohibiting 'the legal incidents' of marriage by other means" and its associated lawsuits.

Domestic Cases to Be Heard Faster

The News-Star reports that the Fourth JDC has established new rules for all family and domestic proceedings that are designed to reduce the time necessary to resolve family docket cases by months. "Speed is important because time is money and the longer court proceedings take, the more it cost," said 4th Judicial District Judge Sharon Marchman. "It also helps parties solve disputes before they come to court."

RSS Feeds from NOAA

Although there is no legal connection, I though it was worth mentioning that the National Weather Service provides RSS Feeds of its tropical storm and hurricane advisories.

St. John the Baptist Judgment Reduced

The Times-Picayune reports that US District Court Judge Ivan Lemelle has ordered the fees assessed against St. John the Parish School Board reduced by almost $40,000. The order comes almost a year after the redistricting suit was "largely resolved."

Update on ETS Lawsuit

The Town Talk reports on the multiple lawsuits filed against Educational Testing Services and provides a tragic story about David Bruce. The article also notes that Charles Brown, a member of The Murray Law Firm of New Orleans, has clients from all over the state and is seeking class-action status for the suit.

Hypes Jury to be Drawn from Lincoln Parish

The Town Talk reports that Ninth JDC Judge Harry Randow has ruled that Lincoln Parish residents will decide the fate of a Rapides Parish woman accused of setting fire to her home to kill her three children. Amanda Gutweiler Hypes' trial on charges of first-degree murder will begin January 24, 2005. She faces the death penalty.

Lafayette Sheriff Provides More via the Web

The Advertiser reports that the Lafayette Parish Sheriff's Office now provides information about two new services offered to parish citizens. First, the parish has joined the Louisiana Automated Victim Notification System (LAVNS), which provides free and anonymous information to victims of crimes about the incarceration status of criminal offenders. Second, the Sheriff's Office is now providing web access to area crime maps. This is neat stuff.

Woman May Burn Book

The Shreveport Times provides today's human interest story.

Update: There is a little more information (and a picture) provided by the Town Talk.

Ouachita Parish Courthouse Gets Upgrade

The News-Star reports on renovations that will take place at the Ouachita Parish Courthouse as a result of ceiling that fell in July.

[A Monroe engineer's] report basically states that the deterioration of the plaster ceilings and wire mesh "is probably caused by the flooding of the floors at numerous times by the prisoners flooding the jail floor above, roof leaks and leaking pipes in the public restrooms."

Monroe City School Board Continues in Secret

The News-Star reports that the Monroe City School Board's search for a new superintendent continues in secret. The paper also reports that the District Attorney is investigating a criminal complaint that alleges the secrecy violates the state's open meetings and open records laws.

Lee Found Guilty

The Advocate reports that Derrick Todd Lee has been found guilty of murdering Geralyn DeSoto.

Gay Marriage Ban Lawsuit

BizNewOrleans reports: "One challenge to a proposed amendment that would lock a same-sex marriage ban into Louisiana's constitution was quickly dismissed today. A second will be heard Friday."

New Orleans Law Firm Merger

BizNewOrleans reports: "Law firm Shaw Norton Degan has joined the local office of fast-growing Memphis-based Baker Donelson, Bearman, Caldwell & Berkowitz officials announced today." Shaw Norton Degan was founded in 2000. Four of the firm's attorneys will move to the Baker Donelson office in New Orleans, while five others will stay in Mandeville and create a Baker Donelson presence there.

Judge Brady Fitzsimmons - An Endorsement

Judge Brady Fitzsimmons (pdf file) is running for re-election to the Louisiana First Circuit in September. I can't say enough good things about Judge Fitzsimmons, so let me put it succinctly. He has no bias and does not play favorites. Even though I have come to know him as a good friend, I know that he would rule against me in a second if he believed I was advocating what he perceived to be the wrong side of an argument. In short, he has my greatest respect as a judge who has complete integrity and an unwavering commitment to doing his job in a fair and impartial way.

If those were his only qualities I'd say those are enough to vote for him without reservation. The fact that he is also hard-working and wise is 'lagniappe.' Hopefully, one day he will be a member of the Louisiana Supreme Court. But, for now, let's make sure he stays on the First Circuit Court of Appeals.

Public Acces to Court Records via the Internet

A request by the Clerk of Court for Livingston Parish to enter into cooperative endeavor agreement with other clerks of court to use software that allows public access to court records via the Internet has been given an OK by the Attorney General's office. The opinion is not yet available online, so details are not clear. Nonetheless, it looks like more parishes will be joining these clerks of court online.

Profile of Judge Robin Free

The Advocate profiles Judge Robin Free, who is presently presiding over the first trial of Derrick Todd Lee.

The judge spends much of the time staring into the screen of a laptop computer. Free explained to jurors on Friday that he is paying attention to the trial and that he uses the laptop to review the law.

Will Lee Represent Himself?

The Advertiser reports that it is not clear who will provide Derrick Todd Lee's defense this week. Lee met with attorneys in the West Baton Rouge Parish public defender's office to determine whether his current attorney, Tommy Thompson, another attorney from the office, or even Lee himself will present the alleged serial-killer's defense. Lee has made complaints that Thompson has not tracked down witnesses who could prove that he was elsewhere at the time Geralyn DeSoto was murdered.

Third Circuit Candidate Forum

The Advertiser reports that a political forum for candidates seeking a seat on Louisiana's Third Circuit Court of Appeal will be held on August 24. "Announced candidates Francie Bouillion of Lafayette, Paul J. deMahy of St. Martinville, James T. Genovese of Opelousas and Thomas K. Regan of Crowley have accepted invitations to participate."

Attorney General Foti to Present Another Check

The Advertiser reports that Attorney General Charles Foti, Jr. will present a check from the state's settlement with the manufacturer of the George Foreman grill in Lafayette on Wednesday night.

Barry Scheck to Speak in Baton Rouge

The News Star reports that Barry Scheck will speak to the Louisiana gubernatorial indigent defenders' task force, "perhaps as early as Thursday." Mr. Scheck is the president of the National Association of Criminal Defense Lawyers, and will be speaking about the lawsuit that the association is preparing to file against the state in an effort to force adequate funding and reforms for the state indigent defense system.

The IT Decision

The Louisiana Environmental Lawyer, a publication of the State Bar Association's Environmental Law Section, has published its Summer 2004 edition [pdf]. The issue features an article I wrote for the section's annual essay contest last year. It details the facts underlying the Louisiana Supreme Court's IT decision, a case which any environmental lawyer in the state is intimately familiar with, and its subsequent and continuing impact on business development in the state today. It's easy reading and should benefit anybody with commercial and/or industrial clients. The following quote evidences the applicability of the topic to present-day construction projects and activities:

The constitutional and statutory construction of the “IT Decision” mandates that environmental factors should be a primary concern when decisions are made that have the potential to impact the environment. In a proper application, the “IT Requirements” should be considered in the very initial stages of a proposed project. Such consideration requires that business partners responsible for developing a business plan or feasibility study coordinate their efforts with environmental staff or consultants. If a court is convinced that an applicant seriously considered the “IT Requirements” when it developed its project, it is much more likely to prevail on a showing that the environmental impact costs have been avoided to the fullest extent possible and that they do not outweigh the social and economic benefits of the proposed activity.

Progress Made, Progress Still Needed

Today the U.S. Fifth Circuit released an opinion in Moses v. Washington Parish School Board. The case concerns Bowling Green School. In the 1970, a federal district court found that Bowling Green had been established to preserve racially segregated education, and enjoined the Washington Parish School Board from providing textbooks, equipment, transportation, or any other assistance to Bowling Green. Fast forward to the 1990s: To make its students eligible for TOPS scholarships, Bowling Green admitted its first African-American student. But the district court refused to lift its earlier injunction, because the court was not yet satisfied that Bowling Green had "demonstrated a good faith commitment to eliminating the vestiges of past discrimination" or had made "meaningful progress toward becoming a non-discriminatory school." Today the Fifth Circuit affirmed that decision.

Derrick Todd Lee Trial Blog

The Advocate is using a blog to provide coverage of alleged serial killer Derrick Todd Lee's first trial. There are still a few kinks to be worked out (e.g., no permalinks and an apparent lack of real-time posting), but this is an experiment to be commended.

Junk Faxes Not Protected Speech

The Advocate reports that US Middle District Judge John Brady issued a decision on Thursday refusing to dismiss 14 class-action lawsuits filed against 13 companies accused of sending unsolicited fax advertisements.

"The First Amendment does not protect all forms of speech from government restrictions," Brady wrote. "There is a distinction between noncommercial speech and commercial speech whereby the latter has only limited protection under the First Amendment."

Philip Bohrer, a Baton Rouge attorney who filed most of the lawsuits said, "We're obviously pleased that the court has found these statutes constitutional and designed for that purpose."

Will Kenner Become a Speed Trap?

The Times-Picayune reports that the Kenner City Council adopted a measure to more closely link police revenue with the number of traffic tickets written by the police force. The measure is an effort to force Police Chief Nick Congemi to begin writing municipal tickets again.

Monroe School Board Facing Scrutiny

The Newsstar reports that the Monroe City School Board is under fire for its refusal to release the names of more than 100 people applying for the position of school superintendent. Doug Lawrence, the school board's lawyer, is "trying to determine whether the board is violating state public records laws by keeping superintendent applications confidential." Apparently, the board has hired a consulting firm, Ray and Associates, which has all of the applications--a fact they seem to be using to distinguish themselves from precedent outlined in this article.

Kenner Feud Continues

The Times-Picayune reports on a new development in the feud between the Kenner City Council and Police Chief Nick Congeni. Kenner Mayor Phil Capitano has proposed an ordinance that will essentially require the Kenner Police Department to finance itself with traffic tickets. Apparently, Chief Congeni has ordered his force to only write tickets that can be heard in state court since he shut the city jail earlier this year. The order is costing the city up to $200,000 in lost revenue each month and may result in some layoffs at Kenner City Court.

Len Davis may face death penalty

Yesterday, the U.S. Fifth Circuit vacated a district-court order that precluded the government from seeking the death penalty against Paul Hardy and former New Orleans police officer Len Davis. Hardy and Davis had been convicted of conspiring to kill Kim Groves, a citizen who had complained that Davis's partner pistol-whipped someone in her neighborhood. The district court had held that the government could not seek the death penalty, because the indictment failed to allege the intent required by the Federal Death Penalty Act (18 U.S.C. § 3591 et seq.). The Fifth Circuit held that any deficiency in the indictment was harmless error, for two reasons: (1) The government had given Davis and Hardy specific notice of its intent to seek the death penalty. (2) The specific acts alleged in the indictment undoubtedly implied that Davis and Hardy intended to kill Groves. United States v. Davis, No. 03-30077, slip op. (5th Cir. Aug. 4, 2004).

Ex-Jefferson Parish Jailer Tries to Plead Guilty, Fails

The Times-Picayune reports that William Giangrosso, the highest-ranking jailer in the federal investigation of Jefferson Parish courthouse corruption, attempted to plead guilty before U.S. Magistrate Louis Moore after reaching a deal with prosecutors. Judge Moore required Giangrosso to change his plea, however, because magistrate judges are not permitted to accept felony guilty pleas.

"Abortion" Referral Center Ordered Closed

The Times-Picayune reports that U.S. District Judge Stanwood Duval has ordered the Causeway Center for Women to cease operations. The center is allegedly operating as an abortion referral service, but several women who have filed suit against the operator claim that it is nothing but a front used to delay, and eventually prevent, attempted abortions.

Lee Jurors Sworn In

The Advocate reports that six men and six women will serve on the first jury to hear a case against Derrick Todd Lee. Jury selection was finished last night, as court officials swore in the twelve jurors and two alternates around 8:00 p.m. The linked article provides a brief description of each juror.

Opening arguments begin today at 1:00 p.m.

Jury Selection in Lee Trial Continues

The Advocate reports that 11 jurors remain out of the 50 questioned thus far in the effort to seat a jury for the first trial of alleged serial killer Derrick Todd Lee. Judge Robin Free likened Tuesday's proceedings to a game of chess, in which the most-skilled player wins.

City Attorney Seeks Bench in NOLA Juvenile Court

The Times-Picayune reports that Robin Shulman, an attorney in private practice in New Orleans for the past 20 years, has taken a leave of absence from the city attorney's office to run for the Section C bench on New Orleans Juvenile Court.

Fourth Circuit Judge to Run For Reelection

The Times-Picayune reports that Judge Terri Fleming Love will run for reelection on the Louisiana Fourth Circuit Court of Appeal. The election will be held on September 18.

U.S. v. Piniero: Blakely in the Fifth Cir.

On July 12, we reported on the U.S. Fifth Circuit's decision in United States v. Pineiro, in which the Fifth Circuit held that Blakely does not extend to the federal Sentencing Guidelines. Today the Fifth Circuit issued a revised opinion, which you can view here. The holding remains the same.

NOLA Superintendent Cannot be Fired without Cause

The Times-Picayune reports that United States District Judge Thomas Porteous has ruled that Anthony Amato, the superintendent of New Orleans public schools, cannot be fired by the Orleans Parish School Board without cause. Accordingly, Judge Porteous granted a permanent injunction to enforce his ruling.

Lee Jury Selection Continues

The Advocate reports that jury selection for the first trial of suspected serial killer Derrick Todd Lee continues in West Baton Rouge Parish. "Judge Robin Free, presiding in 18th Judicial District Court, said he felt the law required him to dismiss all 14 people [from a Monday afternoon panel], because they all heard [another potential juror] say that Lee faces charges elsewhere."

More on Suits Related to Grading Errors

The Advocate reports that at least six lawsuits have been filed against Educational Testing Service as a result of its errors in grading the PRAXIS teacher certification exam. "Kirk Guidry, a Baton Rouge lawyer, said Monday his firm has filed one lawsuit in civil District Court in New Orleans and a second one there in federal court." Furthermore, Guidry thinks the suits might be consolidated in the Eastern District of Louisiana because over 12% of teachers affected nationwide by the foul-up were from this state.

16th JD DA Concerned about New Iberia Police Shift

The Advocate reports that 16th Judicial District District Attorney Phil Haney has written letters to New Iberia Mayor Ruth Fontenot expressing concerns over her recent decision to disband the New Iberia police department and the effect it has had on pending investigations and prosecutions.

Fifth Circuit Halts Gas Rules

The Advocate reports that the United States Fifth Circuit Court of Appeal has halted the use of reformulated gasoline in the Baton Rouge area, at least for the next several months. On Monday, the court directed the EPA to evaluate whether the requirement for the gasoline might be waived based on information to be provided by businesses, local governments and the Louisiana Department of Environmental Quality.

LA Industries to Face Heavier Pollution Fines

The Times-Picayune reports that Department of Environmental Quality Mike McDaniel has indicated that his Agency "will steer a middle course between the enforcement levels that brought complaints from industry during Gov. Buddy Roemer's administration in the late 1980s and early 1990s, and what McDaniel said has been the more relaxed enforcement of the past 12 years under Govs. Edwin Edwards and Mike Foster."

"Philosophically, the fines should have enough punitive impact to make the point we don't want a violation of the laws," McDaniel said. "You will see under this administration a little more emphasis on penalties. You are going to see more punitive measures to get out the message that violations are not acceptable."

LA State Retirement Systems may get Millions

The Times-Picayune reports that the Teachers Retirement System of Louisiana and the Louisiana State Employee Retirement System, or LASERS, could be among the largest beneficiaries of a $300 million class-action settlement with Bristol-Myers Squibb Co. The settlement stems in part from the cancer drug scandal that also engulfed Martha Stewart. The company "announced Friday that it had reached an agreement in a case in the U.S. District Court in the Southern District of New York against the company and its current and former officers, accused in the civil suit of artificially inflating profits and stock price to the detriment of shareholders."

Crawfish Farmers to Begin Making Pesticide Claims

The Advertiser reports that crawfish farmers are set to begin the process of staking their claims to the $24 million won in a legal settlement with Aventis Crop Sciences, a manufacturer of a pesticide linked to crawfish crop losses. Although the farmers actually won $45 million, about $21 million was "eaten up in court costs, administrative and lawyer fees." A claims office opened yesterday in Opelousas where farmers will be bringing production records, sales records, tax returns and expense accounts to prove their damages.

A court-appointed official will evaluate the claims and propose a compensation schedule. The schedule will then be given to State District Judge James Genovese, who presided over the five-year court case. He must approve the schedule before payments can go out.

Living Will Ruled Valid

The News Star reports that Fourth JDC Judge Alvin Sharp ruled yesterday that an 89-year old woman's living will is valid as he lifted the TRO that kept her feeding tube in place. "The judge ruled the court should not 'assume that it is better to 'live' with significant disabilities than to 'die' with the degree of dignity' if the person's wishes were expressed in a living will."

Freeze your Credit Report

The Shreveport Times reports that next July Louisiana will become part of a small minority of states that makes additional protections available to citizens seeking to prevent identity theft. The new weapon, called a security freeze, prevents the major credit bureaus from providing a credit report to anyone unless the person seeking credit has provided the creditor with express permission to access his or her credit report. The service will cost $10 and it looks like you will have to pay $8 each time you want to provide access to your records.

Former Webster Parish Clerk of Court Sentenced to Prison

The Shreveport Times reports that Sueletha Frazier, a former Webster Parish Clerk of Court, will be serving three years in jail after she pled guilty to theft and malfeasance in office. "Frazier resigned in March. She was re-elected without opposition in November and was scheduled to take her second oath of office on July 1. A special election to permanently fill the spot will be Sept. 18."

Amendments to Deposition Procedure

Act 365 amends La. C.C.P. Art. 1443 to require that an objection "be stated concisely and in a non-argumentative and non-suggestive manner," and to require that counsel "cooperate with and be courteous to each other and to the witness and otherwise conduct themselves as required in open court ..."

(0.08% BAC) + (Negligence > 25%) = No Tort Recovery

Act 394 amends La. R.S. 9:2798.4 to provide that no one is liable for damages to a person who operates a motor vehicle or watercraft with 0.08% blood alcohol concentration and who is found more than 25% at fault for the accident.