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Praetorian Law

More than you’ve ever wanted to know about the manufactured scandal over a gubernatorial appointment to the Red River Waterway Commission.

Pictured above: The “Great White Wall” at the headquarters of the Red River Waterway Commission in Natchitoches, Louisiana (circa 2012). 

Praetorian Law:

Roman law: a system of equity developed by the praetors after their acquisition about 149 b.c. of criminal jurisdiction providing for their right to allow an action not provided for by law, their right to disallow an action that would strictly lie by the jus civile, and their right to allow an equitable defense where no defense was provided by law

Until recently, when you walked into the offices of the Red River Waterway Commission (RRWC) in Natchitoches, the first thing you encountered was their Great White Wall, framed portraits of the body’s exclusively white members.

During the past two months, Republican Party political operatives and conservative pundits have attempted to manufacture a scandal over the appointment of the RRWC’s newest commissioner, Col. Ret. Michael Deville, an African-American veteran from Pineville in Rapides Parish, instead of Carolyn Prator, the wife of Caddo Parish Sheriff Steve Prator.

It’s become a near-obssession among the governor’s opponents, and it is, arguably, the pettiest and most ridiculous state political news story of the year, which is really saying something.

On Wednesday, state Attorney General Jeff Landry staged a press conference in Caddo to announce an advisory opinion written by one of his deputies, Carey Jones. The opinion, which argues the appointment failed to properly follow the statutory scheme, fails to consider or acknowledge a few key facts, rendering it effectively useless.  

For more than a week, The Bayou Brief spoke on background with numerous officials from both Caddo and Rapides Parishes, consulted with legal experts familiar with the Red River Waterway Commission, and obtained numerous public records related to the dispute. 

Newly-appointed Commissioner Michael Deville

Rather than proving any sort of illegality or conspiracy, the facts demonstrate a principled decision to ensure more equitable representation on the commission. This isn’t an opinion only held by members of the Edwards administration or officials and civic leaders from my hometown of Alexandria. Several officials and civic leaders in Caddo Parish are in agreement: Those who are demanding Ms. Prator’s appointment are knowingly operating in bad faith, they say. 

The criticism is being leveled by the usual suspects: Far-right conservatives like Jeff Landry and attention-seekers like Sen. John N. Kennedy, a couple of fringe bloggers and hyper-partisan columnists, and the bloviators on AM radio. Notably, though, the list also includes one Democrat, state Sen. Greg Tarver of Shreveport.

To critics of Edwards, state Sen. Tarver’s decision to publicly insert himself into the story lends credibility to the theory that something improper occurred. But Tarver has his own Democratic critics, and privately, they contend he is often more politically aligned with the Republican Sheriff of Caddo Parish, Steve Prator, than he is with most of the delegation.

“(Former state Sen.) Lydia (Jackson) outpolled Greg (Tarver) in urban precincts,” a Shreveport-area political operative explained to me, on the condition of anonymity. “Prator’s endorsement and robocalls to rural portions of the district made up the deficit and gave Tarver a close victory.”

So, it’s not surprising he would lobby for his friend’s wife. “He owes his return to the state Senate to Prator,” the operative said.

During last year’s regular session, state Sen. Tarver was the only African-American in the entire legislature to oppose Senate Bill 139, the most comprehensive and important piece of criminal justice reform legislation of the year. Sheriff Prator was also opposed. The bill passed anyway and is now law. He may also still be upset that he wasn’t able to steer a hospital management deal earlier this year (set to be officially announced on Monday), they say, and the reasons may be more personal than political.

Still, according to multiple people closely involved in the decision-making process, state Sen. Tarver’s politics didn’t factor into the appointment at all, and neither, for that matter, did Sheriff Prator’s.

Nearly a year ago, Gov. Edwards had pledged to members of the Central Louisiana legislative delegation that he would ensure Rapides Parish- not Caddo- received the next at-large appointment. Tarver claimed he had been promised the appointment for Prator, but according to a source familiar with the phone conversation between the state senator and the governor, Tarver is simply not telling the truth.

Tarver’s subsequent insistence that he had secured a commitment from Gov. Edwards to appoint Sheriff Prator’s wife was met with disappointment, though, not hostility or the desire for retribution.



Feb. 15, 2018: The bridge across the Red River at the Boardwalk Mall in Bossier City.

What is the Red River Waterway Commission, and why does any of this matter?

The Red River Waterway District (RRWD) includes the river’s seven parishes in North and Central Louisiana: Avoyelles, Rapides, Natchitoches, Red River, Grant, Bossier, and Caddo. The enabling statute explains its purpose:

The district is created for the object and purpose of establishing, operating and maintaining, individually or in cooperation with the federal government, the state and its various agencies, subdivisions and public bodies, a navigable waterway system to be known as the Red River Waterway, hereinafter simply called the “waterway,” extending from the vicinity of the confluence of Red River with Old River and the Atchafalaya River northwestward in the Red River Valley to the state boundary.  To that end and for the purpose of this Chapter, the district shall be governed by a body or commission which shall be known as the Red River Waterway Commission, hereinafter simply called the “commission.”

It may appear on paper to be a relatively perfunctory, dull, bureaucratic operation, but over the past fifty years, the Red River Waterway Commission has been responsible for at least two billion dollars. Commissioners can become kingmakers for large-scale projects; their decisions can alter the landscape of a community for generations.  

“The RRWD is responsible for active participation in economic and recreational development for areas along the Red River,” the commission explains on its website. “It is accomplished through assistance to the ports in developing opportunities for growth and supporting facilities; working with local governmental entities to develop venues and projects along the Red River and providing and maintaining navigable channels for both commercial and recreational purposes.”

That’s not insignificant.

But in recent years, leaders in the seven-parish region have been frustrated with the commission’s calcification and its failure to coordinate with local and parish governments.

The district is funded through a dedicated millage, but some contend the commission frequently misunderstood its mission. In the past, they say, the RRWC has been too reluctant to spend money on necessary or value-added development projects. It’s sometimes been a terrible partner, they claim, out-of-touch with the communities it serves.

It was a good ol’ boys club, a taxpayer-subsidized fiefdom that had been controlled almost exclusively by white conservative men, critics contend.

The recent media coverage has entirely focused on the plight of pitiable Caddo Parish conservatives, who have recently enjoyed disproportionate influence over the RRWC and who had hoped to make that control permanent by confiscating a seat on the commission from Rapides Parish.

While the loss of an appointment has enraged a handful of Shreveport conservatives, in Central Louisiana, the story is about how brazenly a small group of Caddo Parish political insiders have attempted to play the victim. More absurdly, they argue, these insiders seem to be suggesting that the wife of a sheriff is somehow entitled to a bonus seat at the table, even if it means removing an African-American appointee from Rapides Parish.

Major assets in the Red River Waterway District

Since the legislature established the commission in 1965 as a political subdivision of the state, according to public records, approximately ten African-Americans have ever been appointed to its rotating eleven-member board (plus a twelfth ex-officio member). Three of those members joined during the past six years.

The disparity was so brazen that, in 2017, state Rep. Cedric Glover (D- Shreveport) filed House Bill 602, which was specifically designed to ensure that “gubernatorial appointments are reflective of the entirety of the demographic makeup of the seven parishes that comprise the district.” Rep. Glover, who previously served as the first-ever African American mayor of Shreveport for two terms, ultimately decided to postpone the bill.

Steve and Carolyn Prator. Credit: Paul L. Schuetze, The Shreveport Times
 

His colleagues understood the message, though. In a state in which African-Americans comprise a third of its population, it was absolutely unacceptable that a powerful commission was so dramatically unbalanced. The two members who currently now represent Caddo Parish are both African-American, and without question, part of the story here is the way in white conservatives have played to racial resentments.

“(T)he appointment of Carolyn Prator to the waterway commission would have been consistent with the governor’s policy of inclusion. The commission has always been a ‘boy’s club,’ and Prator certainly would have changed that reality,” writes John Settle, a Shreveport attorney who has been suspended three times from practicing law and who now moonlights as a columnist for The Shreveport Times. “Additionally, she would be a white Caddo member. Burrell and Lattier are black.”

Settle isn’t exactly subtle. 

There was another issue: The commission had also become geographically unbalanced, albeit briefly. Shreveport in Caddo Parish and Alexandria in Rapides Parish are the only two “metropolitan areas” in the district, and throughout the past fourteen years, both had been represented by their own at-large member as well as their own district member. As a result of the death of a commissioner earlier this year, for a period of only four months, Shreveport had three seats, not two. (Importantly, Bossier Parish also has its own appointee, which means the region, which generates approximately 63% of the RRWD’s revenue, still maintains an advantage in representation).

The banner image of the Red River Waterway Commission’s website.

Jeff Landry claims the governor made an illegal appointment. Did he?

No. 

Ironically, in attempting to prove that the appointment was illegal, the state attorney general’s advisory opinion cites, as persuasive authority, the 1992 case Murrill v. Edwards, which forcefully makes the complete opposite ruling.

That case, involving a different Murrill than the current “state Solicitor General” serving in Landry’s office and a different Gov. Edwards, considered a very similar set of circumstances. Importantly, it also required the court to interpret a statute that includes the same language as the enabling statute for the Red River Waterway Commission.

“Nothing in statute authorizes the Governor to ignore the nominations of the local entities and proceed in disregard of the nominating requirement,” Landry claimed in a press release. “Unless the nominating entities present one or more nominees for appointment and the Governor appoints a member to fill the vacancy from among those nominees – the appointment cannot be regarded as a lawful appointment, and a candidate so appointed cannot be said to lawfully hold the office.”

What does it mean when a statute says “the governor shall appoint…”?  

The court answered the question directly: “We do not interpret the language “[t]he governor shall appoint” to mean that the governor is mandated to appoint, but rather we conclude it means that as between the three branches of government, except as provided by the constitution or by law, the appointment powers belong exclusively to the governor subject to Senate confirmation” (emphasis added). 

The court went even further. “However, any requirement that attempts to limit the discretion of the governor to reject the nominees submitted would amount to an impingement on the appointment powers,” it concluded (emphasis added). 

In a footnote, the court also referenced a previous decision in a case styled State ex rel Saint v. Dowling. “This holding implicitly recognizes the governor’s power to reject an appointee by failing to submit the appointee’s name for confirmation during the next regular session of the legislature. The Dowling court explicitly stated this principal (sic) as follows: ‘the appointive power is vested exclusively in the Governor by the Constitution, and therefore it is left to him to take the initial step in having recess appointees confirmed by the Senate.'”

This is also important in the current controversy, because although it does not involve any recess appointments, it is demonstrably true that the nominating organizations in Caddo Parish all failed to submit Carolyn Prator’s name prior to the deadline and failed to follow the procedures required by statute.  

But one doesn’t even need to argue over whether the governor should have been more flexible on the deadline and notification requirements, as Landry does, because the Caddo Parish Commission had already provided the governor with the name of another nominee.

The facts are straightforward.

Mickey Prestridge, a district-level commissioner from Caddo Parish originally nominated by the parish, appointed by Gov. Kathleen Blanco, and reappointed under Gov. Jindal, passed away on Feb. 5, 2018.

A few months prior to Prestridge’s death, in September of last year, the Caddo Parish Commission passed a resolution asking the governor to appoint Shreveport attorney Ronald Lattier to the RRWC.

Lattier was confirmed by the state Senate during the 2018 legislative session and initially had been considered one of four at-large appointees, which is definitively a discretionary decision made by the governor. 

“The act of appointing is a discretionary decision not a mandatory, ministerial duty,” the court in Murrill held. 

When another spot on the commission became available, Lattier assumed the district-level appointment of the Caddo Parish Commission, which had nominated him, and Gov. Edwards then appointed Lt. Ret. Michael Deville, a Rapides Parish nominee, to the at-large position, restoring the balance of the RRWC’s composition that had been in effect for more than a decade. 

The resolution of the Caddo Parish Commission nominating Ronald Lattier.

Notably, the resolution states that Lattier is “the name of a nominee (authorized) to serve as Caddo parish’s (sic) representative on the Red River Waterway Commission.” 

This should have been uncontroversial; the majority of elected officials in Caddo Parish understood and respected their colleagues in Rapides Parish and recognized the unfairness of exploiting a man’s death in order to demand an additional seat on the RRWC. It would demonstrate bad faith and epitomize dirty politics.

But in the aftermath of Prestridge’s passing, a group of Shreveport officials connected to the sheriff began plotting on how to undermine both Rapides Parish and the governor and install Carolyn Prator instead. They attempted to get all three of Caddo’s nominating organizations to submit Prator’s name as their one and only nominee, but they couldn’t get their act together. They missed the deadline. 

Absurdly, they’re now suggesting the governor was required by law to appoint her, and they enlisted the support of the governor’s primary political opponents. 

There are a few critical facts that seem lost in the press coverage: First, they’re arguing for an illegal usurpation of the governor’s constitutional authority. As the courts have made clear, the governor is under no obligation to appoint a person to any board or committee merely because that person was the only one nominated. Second, at-large seats are only held for a term concurrent with the governor’s tenure, whereas district-level seats are held for a term of six years. 

Supporters of Prator don’t seem to realize that even in the event they’re successful in removing Lattier from his reassigned district-level seat, the law only requires there be “one member from each of the seven parishes of the district.” The governor gets to choose his four at-large members from all seven of those parishes.

If he were interested in “political retribution,” as critics contend, Gov. Edwards could ask his two current appointees from Caddo Parish, Roy Burrell and Ronald Lattier, to resign and request their renominations, all while refusing to fill the seat demanded by Prator and her allies. This would jeopardize Caddo’s ability to maintain at least one of the two positions it currently holds. As his office additionally points out, if he were interested in “political retribution,” he could also easily remove Prator from the position to which he appointed her on the Caddo Levee District. 

However, Gov. Edwards has proven he is only interested in ensuring fairness on the RRWC.

The only people who seem to be motivated purely by politics are those who arguing they can force the governor- any governor– to  give someone a job just because they said so. 
 

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