The St. Tammany Parish government overrode the will of the voters by removing 22nd Judicial District Attorney Warren Montgomery as the parish's legal counsel, an attorney for Montgomery told the state Supreme Court on Monday.
But lawyers for the parish said Montgomery is trying to force himself on the parish government and dominate all legal matters in St. Tammany.
The two sides made their oral arguments to the court Monday in New Orleans, with a gallery full of onlookers who included Brister and Montgomery. Several St. Tammany Parish Council members also were there, along with district attorneys from other jurisdictions.
The dispute goes back to 2015, when Montgomery opposed a Home Rule Charter amendment sought by the Parish Council that would have removed the district attorney from control of the parish's legal affairs.
Voters rejected the amendment, but the council then adopted a pair of ordinances aimed at establishing the independence of the parish's legal department. Montgomery filed a suit in 22nd Judicial District Court challenging the parish's action.
The parish prevailed at the district court level in September 2016, and Montgomery appealed to the state 1st Circuit Court of Appeal, losing there on a 2-1 vote. He then took the issue to the state Supreme Court.
Montgomery contends that the ordinances creating an independent legal department and limiting the role of the district attorney were illegal.
His lawyer, Edward Bergin, reiterated those arguments Monday, saying that district attorneys are obligated under state law to provide legal counsel to parish governments, even facing possible charges of malfeasance if they refuse to do so. While parishes can decide not to use the district attorney, he said, they must specifically opt out, and St. Tammany didn't follow the correct procedure to do that.
Bergin acknowledged that under Montgomery's predecessor, Walter Reed, the lawyers who represented the parish were not supervised by the district attorney. But, he said, they were all commissioned as assistant district attorneys. And he said it didn't matter how long the lack of supervision went on because custom cannot abrogate the law.
Justice John Weimer pointed to a provision of St. Tammany's charter that says special legal counsel can be hired by contract for a special purpose. He asked if that purpose could be to represent the parish president or Parish Council.
Bergin said that provision is meant for special cases, such as when the district attorney has a conflict of interest, and is not authority to gut the charter provision that puts the district attorney in charge of the parish's legal representation.
Bergin also said that if St. Tammany's argument that it has effectively opted out of the state requirement is allowed to stand, the argument could be made that every parish with a home rule charter has opted out, "even those that have no intention of doing so."
Richard Stanley, who is representing Brister and the Parish Council, said the key issue is who is the client. "Is it the parish president? Is it the Parish Council? (The district attorney) seems to be arguing that it is an unidentified group of electors," he said.
He raised the potential problem for a district attorney of cases where the parish president and council are at odds and said that has not arisen in St. Tammany because each side has separate representation.
Stanley also argued that parish government has been reorganized several times and that the charter clearly gives the parish president the power to create and eliminate departments.
Fourth Circuit Court of Appeal Judge Michael Kirby, who was filling in for Justice Greg Guidry, who recused himself, said the language of the charter says the district attorney shall be the legal counsel for the parish. "It seems to me he's the lawyer for everyone under the charter," Kirby said.
But Stanley said the charter does not say the district attorney is the sole or exclusive legal adviser. "That's the core of the argument before the court," he said.
He said the parish is not arguing that the district attorney should have no role and that his clients hope for a cooperative relationship.
Montgomery was circumspect following the hearing, saying that he thought his attorney had made his arguments well.
"I just want it over," Brister said, calling the legal battle a drain on parish employees and money, costing "hundreds of thousands of dollars."