US v. State of La.
| Decision Date | 30 October 1990 |
| Docket Number | 90-4109.,Civ. A. No. 80-3300 |
| Citation | 751 F. Supp. 608 |
| Parties | UNITED STATES of America v. STATE OF LOUISIANA: Louisiana State Board of Education, Edward Bopp, as President of the Louisiana State Board of Education, Earl Ingram, as Acting Director of the Louisiana State Board of Education, Lewis Michot, as ex Officio Secretary of the Louisiana State Board of Education; Jesse Bankston, Frederick Eagan, Harvey Peltier, Robert Curry, W.E. Whetstone, Boyd Woodard, A.J. Roy, Charles Colbert, Richard D'Aquin, Enoch Nix, Members of the Louisiana State Board of Education; Louisiana Coordinating Council for Higher Education: William Arceneaux, as Executive Director of the Louisiana Coordinating Council for Higher Education, Jesse Bankston, W.J. Defelice, Mrs. Moise W. Dennery, Albert W. Dent, Ewell Eagan, Fred C. Frey, Eugene G. Gouaux, J.K. Haynes, Thomas James, Troy Middleton, Leonard W. Phillips, Joe D. Smith, Jr., A.L. Swanson, John Phistlethwaite, D.S. Young, Members of the Louisiana Coordinating Council for Higher Education; Louisiana State Board of Supervisors: Carlos G. Spaht, as Chairman of the Louisiana State Board of Supervisors, Edward W. Edwards, as ex Officio Member, William T. Brown, Jimmy H. Davis, Gordon E. Dore, Murphy J. Foster, A. Eglin McKeithen, Lewis H. Padgett, William S. Peck, James R. Peltier, Sargent Pitcher, John Sherrouse, Jr., James T. Staples, Oliver P. Stockwell, A.L. Swanson, Members of the Louisiana State Board of Supervisors; Louisiana Board of Regents: William Arceneaux, Jesse Bankston, Edward Bopp, William T. Brown, Charles Colbert, Robert Curry, Richard D'Aquin, Jimmy H. Davis, W.J. Defelice, Moise W. Dennery, Albert W. Dent, Gordon E. Dore, Ewell Eagan, Frederick Eagan, Murphy J. Foster, Fred C. Frey, Eugene G. Gouaux, J.K. Haynes, Thomas James, A. Eglin McKeithen, Troy Middleton, Enoch Nix, Lewis H. Padgett, William S. Peck, Harvey Peltier, James R. Peltier, Leonard W. Phillips, John Phistlethwaite, Sargent Pitcher, A.J. Roy, John Sherrouse, Jr., Joe D. Smith, Jr., Carlos Spaht, James T. Staples, Oliver P. Stockwell, A.L. Swanson, W.E. Whetstone, Boyd Woodard, D.S. Young, Members of the Louisiana Board of Regents. |
| Court | U.S. District Court — Eastern District of Louisiana |
Donald L. Beckner, U.S. Atty., Baton Rouge, La., Howard L. Sribnick, Jay Heubert, Atty., U.S. Dept. of Justice, Washington, D.C., Franz R. Marshall, Educational Opportunities Section, Civ. Rights Div., U.S. Dept. of Justice, Washington, D.C., P. Raymond Lamonica, U.S. Atty., Baton Rouge, La., for U.S.
W.S. McKenzie, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for LSU Bd. of Sup'rs and its Members.
Kendall L. Vick, Paul A. Eckert, Asst. Atty. Gen., New Orleans, La., for all other State defendants.
Robert C. Williams, Baton Rouge, La., for NAACP.
Curtis A. Calloway, Baton Rouge, La., for Southern University Alumni Ass'n, its President Dr. George Merrick and Grambling College Alumni Ass'n, its President, W.O. Thompson.
M. Aubrey McCleary, Jr., McCollister, Belcher, McCleary & Fazio, Baton Rouge, La., for Southern Ass'n of Colleges & Schools Inc.
Henry N. Brown, Jr., Dist. Atty., Benton, La., for Bossier Parish School Bd.
Robert C. Williams, Baton Rouge, La., for Treavor Brown, et al., amicus.
Trevor G. Bryan, Vincent P. Blanson, William J. Jefferson, Jefferson, Bryan, Jupiter, Lewis & Blanson, New Orleans, La., for Southern University Bd. of Sup'rs.
Margaret E. Woodward, New Orleans, La., for Bd. of Regents of State of La.
Carla Calobrisi, Joseph J. Levin, Jr., Washington, D.C., for State of La.
Paul W. Murrill, Baton Rouge, La.
Frank E. Vandiver, Director, Master Institute for Defense Studies, Texas A & M University, College Station, Tex.
Franklyn Jenifer, President, Howard University, Washington, D.C.
Curtis A. Calloway, Baton Rouge, La., Thomas N. Todd, Chicago, Ill., for Grambling State University Alumni Ass'n.
W. Shelby McKenzie, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for Bd. of Sup'rs of Louisiana State University.
John N. Kennedy, Sp. Counsel to the Governor, State of La., Baton Rouge, La., for Governor Buddy Roemer.
Robert A. Kutcher, Jan Marie Hayden, Bronfin, Heller, Steinberg & Berins, New Orleans, La., for State Bd. of Trustees.
Winston DeCuir, Asst. Atty. Gen., Dept. of Justice, Baton Rouge, La., for State of La. State Bd. of Elementary and Secondary Educ.
Paul R. Verkuil, Sp. Master, College of William & Mary, University Relations, Williamsburg, Va.
Max Nathan, Jr., Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, La., David Boies, New York City, for Counsel to Sp. Master.
James M. Weiss, Mary Ellen Roy, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Capital City Press, Times Picayune.
William J. Guste, Jr., Atty. Gen., Kenneth C. De Jean, Winston Riddick, David Sanders, New Orleans, La., for Atty. Gen. of the State of La.
William J. Guste, Jr., Atty. Gen. of Louisiana, Thomas S. Halligan, Asst. Atty. Gen., Paul R. Baier, Sp. Asst. Atty. Gen. (Louisiana), Louisiana Dept. of Justice, Baton Rouge, La., for State of La.
This case is before the Court on the motion of the Attorney General of the State of Louisiana to Designate Counsel for the State and Withdraw Designation of Additional Counsel Record Document No. (R.Doc.) 517A. Civil Action No. 90-4109 is also before the Court on the motion of the Attorney General to remand to state court R.Doc. 9. The Attorney General seeks to prevent the Governor of the State of Louisiana, acting through Special Counsel John N. Kennedy and associates Joseph J. Levin, Jr. and Carla Calobrisi,1 from appearing in these proceedings. For the following reasons, the Court DENIES both motions.
In 1974, the United States filed this case, alleging that the State and other defendants were violating Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment to the Constitution of the United States. In 1981, the parties entered into a Consent Decree in an attempt to resolve the issues before the Court; by December 31, 1987, when the Consent Decree was to expire by its own terms, there was a volley of countering complaints that the State had not lived up to its obligations and that the Consent Decree was fiscally impossible to fully implement.
Because, in the final analysis, the Consent Decree presented an unworkable "band-aid" type solution to the enormous problems in Louisiana public higher education and because no party took any action to extend or substantially amend the decree before its expiration, the litigation returned to "square one," with all issues reopened. See United States v. Louisiana, 692 F.Supp. 642, 647-49 (E.D.La. 1988). Following several conferences, it was determined that the Court could resolve the case most expeditiously by addressing liability first and then, if any was found, to proceed with the time-consuming process of fashioning a remedy.
Accordingly, on May 13, 1988, the United States and one of the defendants filed cross-motions for summary judgment on liability. On June 6, 1988, Mr. Guste's Assistant Attorney General Winston DeCuir filed an opposition to that motion. See R.Doc. 249. On August 2, 1988, the Court found liability, see United States v. Louisiana, 692 F.Supp. at 653-58, and thereafter proceeded to address the issue of remedy. That June 6th paper was the last the Court heard from the Attorney General in any material respect, until after the case at the trial level was effectively concluded, as is detailed more fully below.
In January 1988, a new Governor, Charles E. "Buddy" Roemer III, took office. He had promised, among other things, a political agenda for reform of higher education. The Attorney General and others apparently briefed him on the lawsuit; to show that the new Governor was given notice of the State's defense and substantially agreed with its content, John N. Kennedy, the Governor's Special Counsel, co-signed the State's memorandum in opposition to the United States' summary judgment motion. See R.Doc. 249.
At that time, Mr. Kennedy was not enrolled as counsel in the case and did not actually participate in the State's defense nor in the preparation of the memorandum. Matters soon changed, however, when the case entered its remedy phase; the Governor, acting through Mr. Kennedy, took a highly active role in the case, including at almost all conferences in chambers with all counsel who desired to appear. The list of court appearances by Mr. Kennedy forms a stark contrast to the list of purported appearances of the Attorney General's staff, which, as indicated below, amounted to receiving mail and silently attending several status conferences.2
In November 1988, Joseph J. Levin, Jr. was also retained to represent the State with Mr. Guste's knowledge and explicit consent. Thereafter, on January 18, 1989, Assistant Attorney General DeCuir filed a motion formally requesting this Court to admit John N. Kennedy, Joseph J. Levin, Jr., and Carla Calobrisi (Mr. Levin's associate) as additional counsel to represent the State; the Court granted the motion and designated Mr. Kennedy as lead trial attorney, Mr. DeCuir as local attorney, and Mr. Levin and Ms. Calobrisi as additional counsel. See R.Doc. 319A.
Mr. Kennedy's participation in this case, which began in early 1988 and continues to this day, has included the submission of formal filings to the Court, as well as his active participation at hearings, status conferences, depositions, settlement conferences and negotiations, and similar related meetings. After he became involved in the case, Mr. Kennedy, along with Mr. Levin, took the lead in the State's representation, drafting documents, filing motions, conducting discovery, attending hearings, and presenting evidence on behalf of the State, all with the tacit approval of the Attorney General.
The period from August 1988 through July 1989...
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