What if team owners and management rated referees, based on calls that went for or against the team? And what if team fans then voted on which refs would call their games? In view of the inglorious no-call on pass interference that contributed to keeping the Saints out of the Super Bowl, many fans might think that’s a great idea. Overall, however, it would make the game less fair.
That’s very much analogous to the plan now being proposed by the Louisiana Association of Business and Industry (LABI) – creating and publicizing a Louisiana “Judicial Scorecard.”
“We want to be able to shine a spotlight,” LABI President and CEO Stephen Waguespack said at a luncheon conference on January 24. “Who are the judges who are doing a great job of being impartial evaluators of the law, and who are those that aren’t?”
The gathering was put together by Louisiana Lawsuit Abuse Watch and the Grow Louisiana Coalition, with support from LABI, LOGA (Louisiana Oil and Gas Association) and LMOGA (Louisiana Mid-Continent Oil and Gas Association).
The “Grow Louisiana Coalition, Inc.” is basically a combo public relations group and political action committee, created by and funded heavily through LOGA and LMOGA. They were actively (and financially) engaged this past year in trying to persuade the 23,000 residents of Plaquemines Parish to vote for parish council candidates who opposed that parish’s coastal lawsuits – which go to trial this year. The group is expected to be a propaganda player in the governor’s race and legislative races this year, too.
And as previously reported here, LABI has long been the primary financial backer of Louisiana Lawsuit Abuse Watch, even though it claims to be “a citizen watchdog group dedicated to stopping lawsuit abuse that threatens local businesses and jobs.”
Think of them all as the owners’ association, working to stay in control of everything done by the entire league.
We know they’re working on rule changes.
In particular, they want changes to state laws governing civil lawsuits, often referred to as “tort reform.”
In October, Waguespack penned a column titled, “It’s Time for Some 1-800-LEGALREFORM,” saying, “The laws the Louisiana Legislature has put in place and protected over the years intentionally incentivize and promote one of the most active lawsuit industries in the entire nation.”
LABI will be pushing lawmakers to lower or remove the present $50,000 threshhold for jury trials in civil suits. (Presently, any suit valued at less than $50,000 is heard and decided by the judge alone – what’s known as a “bench trial’.) LABI has been trying for several years to get this changed.
“It’s absolutely the top thing we have to fix,” Waguespack told the legal reforms crowd at that January 24 luncheon.
Yet LABI, LOGA and LMOGA and their teams of lobbyists are politically savvy enough to know they’re unlikely to make a first down on this possession, since the upcoming legislative session is “fiscal”.
Unlike a “regular” session (in even-numbered years) which has 60 legislative days within a total 85-day span, a “fiscal” session (in odd-numbered years) lasts a total of 45 legislative days over a maximum 60-day span. Not only do they have less time to take action, but legislators are only permitted to file five bills apiece that do not pertain to “fiscal” topics, i.e., taxation, fees, budgeting, etc. Finding lawmakers willing use one of their limited number of bills to author the legal reforms thus becomes more difficult, as does the ability to move the sure-to-be-controversial measures through committees and through the lengthy debates they’ll attract on the floors of both chambers.
Additionally, it’s an election year, and those lawmakers seeking re-election have –in the past — generally steered clear of any issues that might get them tackled on their way to the ballot booth. Still other players have, figuratively, tattooed their team logo over their heart, and are willing to bare their chests if it increases their chance of getting a contract renewal.
Staying in the legislative game takes money, and in this election year it’s going to take lots of money. Conveniently, LABI, LOGA, and LMOGA have amply supplied PACs, ready to contribute to the campaigns of their MVPs. In fact, “MVP” is the term LABI uses for their most loyal lawmakers, in the business and industry group’s annual Legislative Scorecard.
How would (or could) a “Judicial Scorecard” work?
It’s unlikely that LABI would rate Louisiana’s federal judges, as they’re appointed by presidential nomination and confirmed by the U.S. Senate – rather than being elected as state judges are. (And here’s a thought: how would you score Judge A versus Judge B on their handling of…bankruptcy proceedings, for example?)
Within the state court system, it would be impossible to rate juvenile and/or family court judges on their decision-making, as those proceedings are kept “in camera”, to protect the privacy rights of the minors involved. If you can’t access the case records or even the names of the parties involved, you can’t evaluate the judgments rendered.
For judges who preside in criminal court, how do you evaluate their results? How do you factor in plea bargains and jury verdicts when rating the judge’s performance on the bench? Is it strictly a conviction ratio, or cumulative length of sentences handed down over the course of a year? Where do implementation of the state’s 2017 criminal justice reforms fit into the valuation formula? Where do mercy and compassion fit in?
It’s therefore not unreasonable to presume that the “targets” of this “judicial scorecard” will be those state judges who preside over civil matters, and that the main cases they’ll be rated on are “torts” – which are defined as “wrongful acts other than breach of contract for which relief may be obtained in the form of damages or an injunction.” Lawsuits stemming from vehicle wrecks are torts; so are the parish-filed lawsuits against oil and gas companies over coastal land losses. The first of those 44 cases are scheduled to go to trial this year.
In the interest of fairness, comparing “apples to apples” as is said, a rating formula that compares the results of tort cases ineligible for juries (involving claims less that $50,000) might prove informative for the public, as a whole. But we all know that’s not how this scheme is going to work.
If the industry groups’ gleeful trumpeting of Louisiana’s inclusion in the annual “Judicial Hellholes Report” is any guide, they’ll be comparing “apples to oranges” – and to pumpkins and watermelons – when designing the methodology for scoring judges, and failing any judges presiding over jury trials that result in high awards.
For example, the latest “Judicial Hellholes Report” ranks Louisiana fifth, because of the pending – not decided — parish lawsuits against oil and gas. California is ranked as the number one hellhole, first because that state’s Supreme Court ruled unanimously that brand-name drug companies – which write the labels for all versions of their drug – can be sued when people are injured by mislabeled generic versions of the drug. (In that particular case, T.H.v. Novartis, the drug’s generic version, prescribed to control pre-term labor, did not contain warnings that it was known to cause fetal brain damage.
The second case that gave California “top honors” was a $289-million jury verdict against Monsanto, for failure to label RoundUp as a cancer-causing chemical.
Florida earned the number two spot, because its Supreme Court upheld an $8-million verdict for asbestos-caused cancer (mesothelioma). With that same case, they struck down a 2013 state law that permitted judges to bar expert scientific testimony.
And it should be noted that the American Tort Reform Foundation, which has propagated the annual “Judicial Hellholes Report” since 2002, is funded by pharmaceutical companies, insurance companies, oil and gas industries, chemical manufacturers, and auto makers. Koch Industries and Exxon-Mobil are among the biggest contributors.
Based on the methodology LABI employs for issuing its annual “Legislative Scorecard” – rating lawmakers only on their votes for or against certain bills supported or opposed by the association – it’s to be expected the group will rate judges based on verdicts rendered in cases involving LABI’s members. The higher the award against a member business – even if determined by a jury, and not solely by the judge – the worse the judge’s score. And, presumably, judges ruling for or against the constitutionality of a LABI-supported law will also see their scores rise or fall accordingly.
Appeals Court and Supreme Court justices, tasked with reviewing cases and decisions rendered in the district courts, will also be subject to LABI’s evaluation, based not on the facts of each case, but rather on whether the call they make is for or against LABI’s “team.”
This has the potential – dare we say, the intent? — to subvert Louisiana’s entire system of justice.
Louisiana’s legal heritage, unlike other states, comes from the Napoleonic Code, rather than English Common Law. Common Law is built on precedent, the stacking of prior decisions made by the courts. Louisiana law requires a judge to evaluate the facts of each particular case as it applies to the law as written. Precedent may be used by the attorneys as argument to support their position, but the judge’s decision is not bound to follow precedent. He or she isrequired to apply what the law saysto the specifics of just that single case.
That’s the same way the higher courts review those cases on appeal.
LABI’s President and CEO Stephen Waguespack is a lawyer – he was former Gov. Bobby Jindal’s executive counsel – but he is not a judge. By and large, LABI’s members are business owners and management, not lawyers, yet they will be scoring the judges on decisions they make in accordance with how the law applies to the facts of a particular case.
They won’t be reviewing each call based on the complete facts, watching the play from every available camera angle, so to speak. They’ll just say the judge is a bad ref, based on knowing the call went against their team.
Our system of government is structured on discrete powers vested in each of three co-equal branches – legislative, executive and judicial – and its stability is dependent upon the checks and balances each branch affords the others.
LABI has made no secret of its desire to control Louisiana’s legislative branch, with Waguespack bragging at the recent legal reform luncheon about recruiting “business-minded” candidates to run for the state Legislature this fall.
He said, “We’re putting together the apparatus, the infrastructure to find the right candidates, recruit them, put them in office and give them the support.”
They’re aiming for control of the executive branch, too, with much of LABI’s membership putting resources behind the Erector Set’s gubernatorial candidate, Eddie Rispone.
And now, with this proposal to issue their “Judicial Scorecard”, it’s clear they want to “own” the judicial branch, as well.
How does that fit with the first line of Louisiana’s Constitution?
“All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole.”
Oh, that’s right. LABI also supports calling a convention to rewrite the state Constitution.