Two months into Will Crain’s term as a Louisiana Supreme Court justice, the bad blood from the campaign trail has yet to wash away.
Crain won a seat on the high court late last year with a campaign that portrayed him as a strict constitutionalist and a conservative who had won the respect of the public during 10 years on district and appeals courts.
He had endorsements and financial support from big business, as the powerful Louisiana Association for Business and Industry and oil and gas associations backed him.
But Crain’s campaign made what now appears to have been a costly mistake with a mailer in the lead-up to the Nov. 16 runoff that took aim at John Carmouche — a lawyer known both for his aggressive lawsuits against the oil and gas industry for decades of damage and erosion, and for his extravagant financing of Supreme Court candidates believed to be sympathetic to those lawsuits.
Carmouche had laid a heavy bet on Crain’s opponent, 5th Circuit Court of Appeal Judge Hans Liljeberg. He and his law partners poured $445,000 into a political action committee that backed Liljeberg; a second PAC largely funded by Carmouche spent another $300,000 on him.
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The offending mailer from Crain’s committee asked why “trial lawyer John Carmouche” would spend so much money to try to elect Liljeberg. But now that Crain is on the high court, Carmouche’s firm is using the flyer to argue that the new justice should be recused from all of the firm’s pending cases.
The majority of Supreme Court justices agreed, according to court documents released this week, and forced Crain to sit out from two cases involving the Talbot, Carmouche and Marcello law firm.
The outcome is laced with irony — raising the prospect that Crain will be sidelined from the very cases that drive outsized spending and interest in Supreme Court elections.
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Though legacy and coastal lawsuits comprise a small percentage of the Supreme Court’s docket, they are among the state’s most expensive and consequential cases, and the high court has been narrowly divided on how to regard them. Billions of dollars could be on the line for oil and gas companies.
Crain received the industry’s backing in hopes that he would tilt more toward oil and gas than would Carmouche’s preferred candidate, Liljeberg. But the flyer flap raises the possibility that industry won the battle and lost the war, with Crain potentially out of the picture for deciding the cases that oil and gas companies care about most.
Reached for this story, Crain declined to comment and pointed to an affidavit he filed into the record when the court forcibly recused him late last month.
“I do not harbor any hostility towards either parties or their attorneys in the captioned cases, which might impair my ability to be fair and impartial,” Crain wrote in the affidavit.
Crain filed the affidavit after Chief Justice Bernette Johnson signed off on the recusal motion from Carmouche’s law partner, Victor Marcello.
Marcello told The Advocate that the recusal motions detailed the “entirety of our position on the matter.” He did not respond to questions about whether the firm would file more recusal motions against Crain in the future.
Crain’s recusal is just the latest chapter in a multiyear fight over how much influence Carmouche’s firm exerts over the high court.
In another twist, the Supreme Court justice who might most empathize with Crain over the forced recusals was himself accused of trying to undermine Crain’s campaign for the Supreme Court as part of the proxy war between trial lawyers and big business: Jefferson Hughes.
Supreme Court justices forcibly recused Hughes in 2016 from two legacy lawsuits involving Carmouche’s law firm, citing Carmouche’s heavy spending to back Hughes through a political action committee in the 2012 Supreme Court race.
Hughes responded with a federal lawsuit against his fellow Supreme Court justices, which a federal judge later dismissed, saying the justices had immunity under the 11th Amendment.
It’s unclear what behind-the-scenes machinations took place after that, but the 2016 recusals did not turn into a pattern. Hughes has since taken part in other legacy lawsuit cases, including those involving Carmouche’s firm.
But Hughes also came under fire amid Crain’s Supreme Court campaign last year. A former Hammond city councilman, Johnny Blount, alleged in an affidavit that Hughes showed up at his home, told him that backing Liljeberg over Crain could be more financially rewarding for him and offered him $5,000.
Hughes acknowledged that he visited Blount and questioned him about his support in the Supreme Court race, but said he never personally offered Blount money to switch his allegiance.
Crain had plenty of deep-pocketed support in the Supreme Court race: PACs for LABI, the Louisiana Oil and Gas Association, the Louisiana Midcontinent Oil and Gas Association and other business groups were all behind him.
Had one of those outside PACs run the negative mailer linking Carmouche to Liljeberg and Hughes, Crain could have sidestepped questions about whether he was personally biased against Carmouche’s firm.
“That’s what third parties do,” said Scott Wilfong, a GOP operative who ran the Republican Judiciary PAC that supported Liljeberg in the 2019 race.
“I ran a complete third-party effort; I was not affiliated with the Liljeberg campaign and I got tough on Will Crain,” said Wilfong, who previously worked to elect both Hughes and Jimmy Genovese to the Supreme Court. “But that was all my decision, not Liljeberg. With all the outside money helping Will Crain, it’s silly that he felt like he had to do this” — that is, have his own campaign put out an anti-Carmouche flyer.
Disciplining Louisiana judges is a lot like “Fight Club.” The first rule: You don’t talk about it.
The mailer, featuring scattered photos of Carmouche, Hughes and Liljeberg, warned voters of a “Hans hoax,” and asked: “Why would one law firm want to control the Supreme Court?”
Carmouche’s firm cited the mailer in two writ applications pending before the Supreme Court. In one, Carmouche’s firm asked the Supreme Court to grant a writ; in the other, it asked the court to deny a writ from his oil and gas company opponents.
Both cases involved plaintiff Global Marketing Solutions LLC, which is suing over 144 acres of Iberville Parish land that it alleged was contaminated by the oil and gas industry. Defendants included Chevron USA Inc., Blue Mill Farms Inc. and other oil and gas companies.
“The advertisement at issue in this motion is unprecedented ... it is a malicious and baseless attack ad run by a sitting judge and candidate for higher judicial office against a specific lawyer for supporting his opponent,” Marcello wrote in the recusal motion against Crain.
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The recusal motion also took issue with the ad’s depiction of “an unidentified man dressed up as an underworld mafioso figure.”
“The intended message of this attack ad leaves little to the imagination: Carmouche is accused of being an underworld figure seeking to buy and control the Supreme Court to ensure success in his legacy cases,” the recusal motion reads.
Crain’s recusal case is similar to one that the 3rd Circuit Court of Appeal decided last year involving state district Judge Marilyn Castle of Lafayette. Castle, another LABI-backed candidate, ran a flyer during her 2016 bid for the Supreme Court that cast doubt on the motives of personal-injury law firms who were donating money to a PAC that backed her opponent, Genovese.
One of the firms Castle’s campaign called out, Broussard and David, later asked to recuse Castle from a pending case, saying that the mailer proved her bias against them. The 3rd Circuit agreed in May of last year, writing that it was unlikely a client could believe in a judge’s impartiality “when the sitting trial judge hearing her case has published such an ad directly naming and attacking her attorneys.”
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Carmouche’s firm cited the 3rd Circuit case in their motion to recuse Crain.
In signing off on Crain’s recusal, the Louisiana Supreme Court did not list reasons for doing so. Johnson simply signed an order granting the motion “based on the facts and circumstances of this matter.”
Two justices dissented: Scott Crichton and James Boddie, a retired judge who is sitting ad hoc for Justice Marcus Clark, who recently announced that he was stepping down from the Supreme Court.
“A campaign mailer such as the one at issue here cannot — and should not — be the basis of recusal,” Crichton wrote in his dissent. “The majority’s decision to grant recusation under these circumstances, notwithstanding our colleague’s sworn statement, is misguided, if not patently wrong, as neither federal case law or state law requires it.”
Crain’s votes on the writ applications from Carmouche’s firm would not have made a difference, had he not been recused. The court unanimously denied the writ that Carmouche requested. The majority granted the writ that attorneys for Chevron, Exxon Mobil and Key Production Co. asked for, with a dissent from Hughes.