According to The Times-Picayune:
At the last possible minute - and even a little later than that - Gov. Bobby Jindal Monday entered the dispute over who will be the next chief justice, joining a motion on behalf of the state Supreme Court's power to make that decision on its own without the intervention of the federal court. It was a surprising development because as recently as Friday evening, it appeared the governor was going to stay out of the controversy over whether Supreme Court Justice Bernette Johnson has a rightful claim to be the next chief justice, with Jindal spokeswoman Shannon Bates saying, "It's an issue for the courts to decide."
But in a court pleading Monday, Jindal's executive counsel, Elizabeth Baker Murrill, joined four attorneys from the New Orleans firm of Christovich & Kearney, who had been assigned by the state to represent members of the Supreme Court aside from Johnson, and made it plain that the governor believes it is a an issue for the state, and not federal court to decide.
"The State of Louisiana, Office of the Governor, takes no position on who should become the next Chief Justice of the Louisiana Supreme Court, a Louisiana Constitutional issue which the Supreme Court of the State of Louisiana will decide. The position of the State of Louisiana, Office of the Governor, is, however, that deciding this Louisiana constitutional question is the sole province for the Louisiana Supreme Court," reads the memorandum filed Monday at one minute past the filing deadline of 5 p.m. set by federal Judge Susie Morgan. Alanah Hebert, an attorney for Johnson, said the governor's intervention also comes five days after Morgan's deadline last Wednesday for the Christovich attorneys to establish that they really were representing the state of Louisiana.
In a filing at 4:27 p.m. Monday, the Christovich attorneys, responding to Morgan's demand that they demonstrate that they truly represent the state of Louisiana, wrote that, "To avoid further ambiguity regarding the State's representation of its interests in this matter, the Governor is entering these proceedings to represent the State through undersigned counsel and the Governor's Executive Counsel."
The governor's intervention followed conversations between the lawyers for the state Supreme Court justices and the governor's counsel.
"After consulting with the courts and as stated in the pleadings filed today, it is important that this Louisiana-specific constitutional question be decided by Louisiana courts," said Bates. "As for who should be the next chief justice, that is a matter for the courts to decide."
With this, the political battle over the Louisiana Supreme Court would now appear to be fully joined, with Gov. Jindal and the U.S. Justice Department on opposite sides.
The Christovich attorneys - Kevin Tully, E. Phelps Gay, Elizabeth Cordes and H. Carter Marshall - who last week were rebuked by Attorney General Buddy Caldwell for identifying themselves in the court papers as "special assistant attorneys general," in this latest filing identify themselves as "special counsel for the state of Louisiana and the Office of the Governor."
Under the state Constitution, the most senior justice on the Supreme Court serves as chief justice. One of Johnson's colleagues, Justice Jeffrey Victory, contends that while Johnson has served with the court for more years than he has, he is actually more senior because her early years were served under the terms of the Chisom consent decree that settled a voting rights lawsuit, in which she was an appellate judge exclusively assigned to the Supreme Court.
An amicus brief filed in the case Monday by the NAACP Legal Defense and Educational Fund, echoed the U.S. Justice Department's own filing in the case, arguing that Johnson's seniority and her claim to be the next chief justice are beyond dispute.
"The issue before this Court is straightforward: whether Justice Bernette Johnson, who has undeniably served the longest on the Louisiana Supreme Court ... after Chief Catherine Justice Kimball, should succeed the Chief Justice once she retires in January 2013," reads the NAACP brief.
According to the brief, for the Louisiana Supreme Court to now create a "proceeding" to determine who is more senior would infringe on the federal court's authority to implement the Chisom consent decree, and "any legal conclusions reached by the Supreme Court that are inconsistent with this Court's authoritative interpretation of the Consent Judgment would be invalid."