Cost of abortion clinic lawsuit continues to rise; contract benefits Louisiana legislator _lowres

Advocate staff photo by PATRICK DENNIS -- Gov. Bobby Jindal, left, and Rep. Mike Johnson, R-Bossier City, talk to the media about the religious freedom bill sponsored by Rep. Johnson.

A Louisiana legislator stands to make tens of thousands of dollars as part of the legal team representing the state in a federal court trial over abortion clinic restrictions entering its fifth day Friday in Baton Rouge.

State Rep. Mike Johnson said Thursday he is covered by an exception in the state law that generally bans legislators and certain other officials from entering into a contract with state government. Nevertheless, Johnson said, he’ll check with the state Ethics Board to see if he can continue once the trial is over.

Johnson said his arrangement is OK because the contract was entered into before he became a state legislator. “Our contract is sort of ambiguous in the wording. I don’t want to have any gray areas,” Johnson said Thursday.

The $100,000 contract with the law firm hired by the state ballooned to $400,000 since Johnson took office in February. The lawyers already have billed the state $338,896, according to their client, the state Department of Health and Hospitals.

The lawyers’ fees likely will increase. Trials in other states that similarly have contested laws requiring physicians who perform the pregnancy-terminating procedures to have admitting privileges to a nearby hospital have been appealed, growing more expensive. Similar cases tried in Mississippi and Texas were both appealed to the 5th U.S. Circuit Court of Appeals, which rendered differing rulings. The state’s case is expected to also be appealed.

The contract runs from Aug. 22, 2014, until June 30, 2017, and covers legal representation through appeals, according to the signed document. DHH chose to hire outside lawyers instead of relying on the state Attorney General’s Office.

Johnson is co-counsel with Duncan PLLC, a Washington, D.C., law firm headed by S. Kyle Duncan, who was lead counsel for Hobby Lobby when a divided U.S. Supreme Court ruled that corporations with religious owners cannot be required to pay for insurance coverage of contraception.

Johnson also is a well-known legal advocate for limiting abortion clinics in Louisiana and has filed complaints over their practices.

Duncan is being paid $385 an hour and Johnson $200 an hour, according to the contract.

The contract is for legal services related to a lawsuit being argued in U.S. District Court in Baton Rouge this week over the constitutionality of a state law requiring physicians performing abortions to have admitting privileges within 30 miles of the clinic, that is, the permission to have their patients admitted to a hospital. The state, represented by Johnson and Duncan, argues that the requirement is needed to protect the health and safety of patients. Opponents argue that requirement is medically unnecessary for a simple procedure, and that standard would force many of the clinics to close.

The lawsuit was filed by three Louisiana abortion clinics and unnamed physicians who argue the requirement would create an undue burden and result in an illegal barrier to a woman’s right to an abortion.

Johnson reported receiving $12,320 in income from DHH in 2014 for “litigation services” in a personal financial disclosure report filed with the state ethics agency. In an interview, he said the income is related to the current trial.

State Ethics Administrator Kathleen Allen said she is not legally allowed to comment about specific cases.

But Allen referred to a state law prohibiting legislators and certain other officials from entering into a contract with state government. There is an exception in the law to allow completion of contracts entered into prior to the individual taking office, however, no such contract can be renewed, she said. Another law requires disclosure of the contract in a report filed with ethics for transparency’s sake.

Johnson has not yet filed a required disclosure report detailing specifics of the contract, according to the Louisiana Board of Ethics — the repository for the reports.

The report is supposed to be filed by May 15 each year for activity in the prior year. There is no per day penalty for failure to file or late filings. If a violation is found, the Ethics Board could impose a civil fine of up to $10,000.

Johnson said the contract was entered into “even before I decided to run.”

“You can fulfill the terms of the contract without violating the law,” he said. “It makes good sense.”

The contract contains an Aug. 22, 2014, start date, however, it did not complete the state approval process until Jan. 14, 2015, when the Office of Contractual Review concurred. Duncan signed the initial contract in October, but the Attorney General’s Office and Division of Administration did not sign until December.

Johnson, a Republican from Benton, qualified in January to run in a special election for a vacant Louisiana House seat. No other candidates qualified and he was sworn in as a state representative Feb. 3.

The Duncan contract was amended effective March 10 to increase legal fee maximum payout from $100,000 to $400,000.

“It is anticipated that Counsel will need to devote more legal resources and legal hours to the representation and defense of DHH in litigation where the constitutionality of Act 620 of the 2014 Session has been challenged with regard to admitting privilege requirements for abortion facilities,” according to the document justifying the increase.

Follow Marsha Shuler on Twitter @MarshaShulerCNB. For more coverage of the state capitol, follow Louisiana Politics at