BATON ROUGE — Over an Independence Day weekend that began with a grand jury in New Orleans indicting Attorney General Liz Murrill on Thursday, state Supreme Court justices weighed in twice on the potential criminal prosecution of the state’s top lawyer.
Those rulings show broad disagreement about the validity of the charges and the appropriate role for the state’s top court in a heavily-politicized conflict between the people who run the city of New Orleans and the people who run state government.
How we got here
The disagreement began when the state legislature decided to make some changes to the New Orleans courts. Unlike other court systems in Louisiana, Orleans Parish has had a clerk of criminal court and a clerk of civil court. The legislature passed, and the governor signed, a law eliminating the criminal court position and shifting those responsibilities to the one remaining clerk of court.
The law took effect four days before Calvin Duncan, a man who was exonerated in a murder after decades in prison, was due to start working as the criminal court clerk. Duncan won the election this past fall with 68 percent of the vote.
The New Orleans City Council, at the urging of Mayor Helena Moreno and taking advice from District Attorney Jason Williams, concluded that the law created a new, elected position. The council then appointed retired judge Calvin Johnson to the role and called for a special election so voters could choose a full-term clerk.
Murrill responded by sending letters to Moreno, Williams, Johnson and the five city council members who voted in favor of those actions.
In the letters, she said the elected officials put themselves in danger of losing their own jobs because they were violating Louisiana’s laws that prevent “usurping,” or one official improperly taking authority away from another official. In this case, that would be the powers of the elected civil court clerk being taken away by the city council and given to Johnson.
Ultimately, the state Supreme Court backed the state’s interpretation of the new law, leaving Duncan out of a job and the elected civil court clerk becoming the overall court clerk.
However, as Justice John Michael Guidry noted in his dissent from the majority opinion staying the criminal case, the court had specified that the mayor, district attorney and city council’s actions did not violate state usurper laws.
He cited a footnote in the ruling that referred to “the obvious confusion” about the new law and said “any actions taken prior to this Court rendering this judgment shall not be considered a violation” of those laws.
At some point, a sitting grand jury in New Orleans decided to take a look at Murrill’s actions. Williams, the district attorney, recused himself and retired judge Laurie White was appointed special prosecutor over the case.
On Thursday, July 2, the grand jury indicted Murrill on eight counts each of malfeasance in office and public intimidation. A warrant was issued for her arrest on those charges.
Court issued a stay
Within hours of the indictment, Murrill had lawyers from two New Orleans firms file an emergency motion to quash the indictments or at least to issue a stay — the legal version of putting something on hold — to give her time to ask the New Orleans court to invalidate the indictment.
Her attorneys argued that the special prosecutor appointed to the case, retired judge Laurie White, was behaving improperly because that court system has cases pending that are being prosecuted by the attorney general’s office. They also claimed that someone may have tried to manipulate the grand jury for political purposes and that grand jury information was being leaked to reporters.
“Indeed, based on the leak to the press it is clear that grand jury has been talking a lot. To whom must be the subject of later action,” the motion said.
The motion also included allegations that Laurie White had conflicts of interest that should have led to her to step aside. The motion claimed, without providing evidence, that White was currently representing criminal defendants, which should have kept her from being appointed as the special prosecutor.
They added that White is represented by the attorney general’s office in a civil suit. The motion claimed that alone should have prevented White from being involved in the grand jury investigation of the Attorney General’s Office, which provides legal representation for officials sued because of their work.
UWK did reach out to White. She was limited in her response but did say, “I am not the story.”
The state Supreme Court issued the stay early Friday morning, with five of the seven justices voting in favor.
In the court’s ruling, it said “the record before this Court is underdeveloped” but filings indicated significant problems with the handling of the grand jury process.
“There is considerable support for the view that the Attorney General is likely to succeed on the merits of a motion to quash this indictment on either a legal basis or due to apparent procedural irregularities,” the court said. “She obviously also suffers irreparable harm by allowing this matter to proceed without these important issues being addressed.”
Justice: “Can we say…we truly believe that no one is above the law?”
Guidry and Chief Justice John Weimer dissented, with Guidry weighing the treatment Murrill received against the treatment other indicted people get.
“Without even allowing the ink to dry on the indictment, the majority gives preference and priority to one criminally accused citizen over of all her fellow citizens who also have been criminally charged, many of whom are languishing behind bars awaiting action by lower courts, and it may take them years before they are ever granted review of their matters by this court. There is no exigency that exists here that is not faced by every other indicted citizen. This is not supposed to be how the system works,” Guidry wrote. “Can our court truly say with a straight face after today’s ruling, on the eve of the 250th anniversary of our nation’s independence, that we truly believe that no one is above the law?”
Guidry wrote that the danger of Murrill appearing to get better treatment than other citizens get affects the court as a whole.
“Today, the majority’s action gives the public the perception that the scales of justice can be tilted to favor the position of one criminally accused person, but not others. That erodes public confidence in the judiciary, undermines the rule of law, and makes a mockery of the ideal of blind justice,” Guidry wrote.
Weimer agreed with Guidry and also said that the court should at least hear from the prosecutors before making a decision on Murrill’s request.
“I disagree with this court’s decision to take up this matter in its current posture. All are equal before a court of justice and there are many steps in this process which are being skipped, potentially based solely on the title one party holds,” he wrote.
However, several of the justices wrote their own statements agreeing with the ruling.
Justice Jeff Hughes said “this extraordinary situation obviously calls for a stay” and went on to say that the stay does not “decide the merits” of a case.
Justice Piper Griffin voted with the majority, but said she shared Guidry’s concern about whether the indictment was a true emergency.
“However, out of an abundance of caution, I agree with the issuance of a stay that does not reach the merits but allows this Court to ultimately resolve this rapidly escalating quagmire,” Griffin wrote.
Warrant recall
Several hours after the court ruled on issuing the stay, Murrill’s attorneys filed a new request because White and the criminal court had not yet recalled the arrest warrant.
The court majority again agreed with Murrill and specifically ordered the warrant recalled. Weimer again dissented.
“It is said that procedure is the handmaiden of substance, but in criminal cases procedural rules are indispensable to serve justice and ensure that all are treated equally,” Weimer wrote. “Yet, ironically, on the eve of this July 4th when our nation will commemorate the 250th anniversary of the Declaration of Independence, this court is once again called upon to provide exceptions to the normal process pursuant to another feigned emergency by one party.”
Weimer said the court’s actions went far beyond what should be considered acceptable, particularly when the court is stopping actions taken by a grand jury.
“Here, a prosecutor is essentially demanding that the efforts of these jurors be disregarded,” he wrote. “The gravity of such a demand should be supported by proper presentation of evidence and this court should not take action so hastily. Unfortunately, it is becoming apparent to the public that the majority of this court has already resolved the substantive issues, without the benefit of an evidentiary record, without hearing from the other side, and without oral argument.”
Griffin also dissented, saying the second order delved too far into the substance of the case.
“I respectfully dissent as recalling the warrant goes to the merits of this matter,” she wrote.
Guidry again dissented, saying the order to recall the warrant is “elevating power and privilege over process.”
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