Pascal Calogero

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Pascal Calogero, Jr. is a former Chief Justice for the Louisiana Supreme Court. He retired at the end of his term on December 31, 2008. After he retired, he became the longest serving Justice in the history of the Louisiana Supreme Court.[1]

Legal education and experience

Chief Justice Calogero received his J.D. degree from Loyola School of Law in 1954, where he graduated first in his class and was President of the Student Editorial Board of the Loyola Law Review. In 1992, almost forty years after receiving his J. D. degree, Chief Justice Calogero received a Master of Laws degree in the Judicial Process from the University of Virginia.

As Associate Justice

Calogero was elected to the Louisiana Supreme Court in 1972 and took his first oath as Associate Justice on January 10, 1973 to serve a two-year unexpired term. He was re-elected in 1974 to a fourteen-year term on the Court. He was re-elected in 1988 and in 1998. As an Associate Justice, he was a member of the Judicial Council and the Judicial Ethics Committee. He also served as the State Court Representative for the National Center for State Courts, as Chairman of the Supreme Court Budget Committee, and as Chairman of the Judicial Budgetary Control Board.

As Chief Justice

Chief Justice Calogero was sworn in as Chief Justice of the Louisiana Supreme Court on April 9, 1990. As Chief Justice, he serves as the Chief Administrative Officer of the Louisiana Court System, Chairman of the Judicial Ethics Committee, the Judicial Council, and the Human Resources Committee, and as a member of the Conference of Chief Justices. In December of 1994, he was appointed by U. S. Supreme Court Chief Justice William H. Rehnquist to the Advisory Committee on Appellate Rules of the Judicial Conference of the United States, and, in 1995, he commenced serving on the National Center for State Courts Time on Appeal Advisory Committee. In 1997, he was elected to the Board of Directors of the Conference of Chief Justices.

As Chief Justice, Justice Calogero has been responsible for numerous major improvements to the law, the legal system, and the administration of justice in Louisiana, many of which serve as national models of court improvement. Just a few examples of such reforms in judicial administration include creation of the Louisiana Indigent Defender Board (now an executive branch agency), establishment of the mandatory Interest on Lawyers' Trust Fund Account Program (IOLTA) for the purpose of funding law-related programs benefiting the public and the legal system, improvements in the juvenile court system, institution of a new lawyer disciplinary system based on the ABA's Model Code, bolstering of the judicial disciplinary system, adoption of 5-year Strategic Plans for the Supreme Court, Courts of Appeal, and trial courts, adoption of a uniform pay plan for the state appellate courts, and establishment of the Supreme Court's Community Relations Department.

Remarks on Louisiana's Judicial System

During his 2008 State of the Judiciary Address to the Louisiana Legislature on April 8, 2008, Chief Justice Calogero had some personal remarks to make on the some of the problems facing the Louisiana judiciary:

"Many of the problems impairing judicial performance -- some of them problems revealed during the hurricanes and their aftermaths -- are deeply rooted in the confusing manner in which the judicial system is structured, governed, and financed. The present set of fragmented arrangements includes more than 750 elected judges and justices of the peace spread over five layers of courts, as well as countless district attorneys, clerks of court, sheriffs, coroners, and other court officials, all of whom exercise discrete, independent authority and are funded through differing financing mechanisms. The present system is further complicated by the fact that trial court judges, especially those on the district courts, are almost totally dependent upon other elected officers for the delivery of most essential court functions."[2]

Military Service

Calogero served in the United States Army from 1954 to 1957 as a military police officer, and then as an officer in the Judge Advocate General's Corps until separation from the Army with the rank of Captain. He served as a law clerk to the judges of Civil District Court in Orleans Parish prior to practicing law from 1958 to 1972.

Associations and Awards

The American Judicature Society presented Justice Calogero with its Opperman Award of Judicial Excellence on October 2, 2007.[3]

Political Affiliation and Campaign Contributions

Democrat. In the 1998 general election, Chief Justice Calogero raised $1,261,313. The business sector contributed 86.6% ($976,456), with the party contributing 12.3% ($138,477), and labor rounding out the remaining 1.1% with $12,100.[4]

Court Impartiality Questioned

Tulane University Study

In February of 2008, Tulane University Law Professor Vernon Palmer and John Levendis, an economics professor at Loyola University in New Orleans, released a study that concluded that Supreme Court Judges overwhelmingly rendered verdicts that favored people who had made contributions to the justices.[5]

"What we show in this study is there is an unusually high correlation between campaign contributions and decisions in favor of contributors, with very little possibility of being in error because it's done statistically," Palmer said. The study concluded that statistically speaking, campaign donors have a favored status among litigants appearing before the court, a sign it says indicates that campaign cash may have eroded the qualities most needed in such a court: independence, impartiality, and adherence to the rule of law.

Palmer and Levendis looked at 181 cases over 14-year period of time. If a litigant or attorney had made at least one contribution to a justice the court ruled in their favor 65% of the time. Two of the seven justices had a contributors in-favor percentage of at least 80%.[6]

Supreme Court chief disputes study

The Louisiana Supreme Court's chief justice lashed out at Tulane University Law Professor Vernon Palmer and Loyola University Professor of Economics John Levendis, who wrote a study that claims the Louisiana Supreme Court has been influenced by campaign donors. Chief Justice Pascal Calogero Jr, called the study a "baseless and unsupported" attack. In a statement posted on the court's Web site, Justice Calogero said the published Tulane Law Review article relied on flawed data and methodology in concluding that some justices have been "wittingly or unwittingly" influenced by donations from lawyers who appear before them.

Tulane apologizes, professors stand by conclusions

On September 10th, 2008, Tulane University Dean of Law Lawrence Ponoroff, sent the Louisiana Supreme Court a letter[7] of apology for what he said were "numerous errors" underlying a recent Tulane Law Review article that concluded that litigants and attorneys that made campaign contributions to justices were highly more likely to receive favorable verdicts.

"Because of the miscalculation in the underlying data, the reliability of some or all of the authors' conclusions in the study as published has been called into question," dean Lawrence Ponoroff said in a Sept. 10 letter to the court.

Study author Prof. Vernon Palmer took full responsibility for the errors found in the study, but during a September 15th, 2008 interview with The Times-Picayune, Palmer stood by the conclusions of his study. "Yet with all the mistakes now corrected, he said, the study's conclusions, broadly speaking, are the same," Palmer said.[8]

Justice for Sale: 1999 Frontline Transcript

BILL MOYERS: New Orleans, Louisiana. In the city they call "The Big Easy," money has been known to buy elections. And that's exactly what's got a lot of people worried that justice, too, might be up for sale.[9]

BILL MOYERS: Up for re-election last year, the chief justice of the Louisiana supreme court was targeted by a business group, the Louisiana Association of Business and Industry, known as LABI. They considered his voting record on the court anti-business.

GINGER SAWYER, Political Director, LABI: We don't pick our opponents lightly when we make selections of people to target for replacing on the bench. The primary way to make the selection was tracking all the decisions the supreme court has made over the last 25 years. So we drew from the 25-year history 50 cases and determined how each one of the judges had voted on the merits of those cases.

Chief Justice Pascal Calogero had a 3 percent voting record. Now, that's totally unacceptable, to the business community's way of thinking.

BILL MOYERS: Justice Calogero dismissed the charge that he had voted in favor of business only 3 percent of the time. He said LABI was using a highly selective and distorted measure to rate him.

Chief Justice PASCAL CALOGERO: I've cast 50,000 votes in 25 years on this court. If you want to go back and look at and pick and choose the cases in which you think that a given vote was wrong or indicated a leaning of some sort, it's very easy.

GINGER SAWYER: He complained that she had hand-picked the issues. Well, certainly I hand-picked the issues. Was I going to let him pick the issues?

Ties to Louisiana Association of Business and Industry

In an April, 2000 article entitled "Corporate financed campaigns... Government by the rich, for the rich?" Justice Calogero was accused of pandering to corporate interests by amending Louisiana's Rule XX, which had allowed--for thirty years--students at Tulane University's Environmental Law Clinic to give legal representation to people affected by pollution near the Mississippi's "Cancer Alley." Residents of Convent, LA (within the geographical paramaters of said "alley") had turned to the clinic to represent them in their fight against Shintec, a subsidiary of a Japanese company that was planning on building a $700 million polyvinyl chloride plant in the alley.

The student lawyers aruged that it was not environmentally just to put in yet another heavily polluting plant alongside six others that had already overloaded the environment with chemicals. The EPA ruled in favor of the Convent residents, deciding that Shintec didn not meet the air polution standards. The plant was never built.[10]

In defiance, Louisiana's Governor Mike Foster lobbied New Orleans Chamber of Commerce and area alumni to cease contributing to Tulane, and began trying to convince the Supreme Court to amend Rule XX. The Louisian Association of Business and Industry approached Calogero to change the rule to restrict Tulane students from giving aide, an out-of-character move since they had financed an extensive smear-campaign against Calogero in the previous Supreme Court elections.

Calogero, up for re-election, conceded. Soon after, 29 business leaders, including Shintec's legal representation, endorsed Calogero who accrued over $1 million in campaign contrubitions and won his bid.

Regarding Louisiana's Sodomy Laws

Justice Calogero ruled in the minority opinion with Justice Harry Lemmon in State v. Mitchell Smith that "the government has no legitimate interest or compelling reasons for regulating, through criminal statutes, adult, private, non-commercial, consensual acts of sexual intimacy."[11]

On the issues

On Discrimination and Equal Protection

  • Cook v. Cook (2007)

Justice Calogero dissented from the majority opinion of the Court, which concluded that a mother who exposed her children to her lesbian relationship was not entitled to keep custody of those children.

  • State v. Bailey (2007)

Justice Calogero concurred in the majority opinion of the Court, which concluded a white district attorney should have recused himself from the prosecution of "The Jana 6," six African-American highschool students who attacked a white student, because his past behavior indicated a bias towards vigorous prosecution of blacks, and insufficient prosecution of whites.

  • State v. Coleman (2007)

Justice Calogero concurred in the majority opinion, written by Justice Bernette J. Johnson, which found that a prosecutor consciously and impermissibly took race into account where he, in a death penalty case with a black defendant who was convicted of first degree murder, failed to select a black juror who had filed a discrimination lawsuit against the state for "institutional discrimination."

Regarding Louisiana's Sodomy Laws

Justice Calogero ruled in the minority opinion with Justice Harry Lemmon in State v. Mitchell Smith that "the government has no legitimate interest or compelling reasons for regulating, through criminal statutes, adult, private, non-commercial, consensual acts of sexual intimacy."[12]

On Government Accountability

  • In re Justice of the Peace Alfonso (2007)

Justice Calogero concurred in majority opinion of Justice John L. Weimer, which imposed a 30 day suspension on Justice of the Peace Myrty Alfonso for her extreme abuse of power in having a neighbor against whom she harbored ill-will arrested and incarcerated for a night without probable cause.

On Personal Responsibility

  • State ex rel. A.T.(2006)

Justice Calogero concurred in majority opinion of Justice Jeffrey P. Victory, which held, over the dissent of Justices Chet D. Traylor and Jeannette Theriot Knoll, that the State of Louisiana Department of Social Services was required to "make reasonable efforts to assist [a] parent in finding suitable housing before it may seek to terminate parental rights."

On Taxes

  • Voicestream GSM I Operating Co., LLC v. Louisiana Public Service Commission (2006)

Justice Calogero concurred in the majority opinion of Justice Bernette J. Johnson, which held that a Government Agency Order requiring cell phone providers to pay into a fund for setting up rural phone service was a permissible "fee" rather than an unconstitutionally impermissible "tax," even though the eventual effect of these fees would be to pass on the costs to cell phone users rather than the general public.

On Tax Increment Financing

  • Board of Directors of the Industrial Development Board of the City of Gonzales, Louisiana v. All Taxpayers, Property Owners, Citizens of the City of Gonzales, Louisiana (2006)

Justice Calogero concurred in Justice Kimball's majority opinion of the Court, which, over the strong dissenting opinion of Justice Chet D. Traylor, held that a Tax Increment Financing (TIF) plan (1) did not constitute a gratuitous handout, loan, or donation of public funds to a private entity where it used public funds to construct a retail development and accompanying infrastructure for Cabela's Retail Center; (2) could be funded through the issuance of municipal bonds pursuant to Louisiana's TIF statute; and (3) did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution where it handed out public funds to Cabela's, a private retailer, but not to already-existing, smaller local retailers.

  • Denham Springs Economic Development District v. All Taxpayers, Property Owners, and Citizens of the Denham Springs Economic Development District (2006)

Justice Calogero concurred in the majority opinion, written by Justice Jeannette Theriot Knoll, which held that (1) the government did not violate the due process rights, under the Due Process Clause of the Fourteenth Amendment, of local citizens by notifying them of a $50 million Tax Increment Financing (TIF) plan for Bass Pro Shops only by mail, rather than by personal service, even though they were, as a group, easily identifiable; and (2)

On Term Limits

  • Deculus v. Welborn (2007)

The majority opinion of Justice Catherine D. Kimball, which, over the dissent of Bernette J. Johnson held that, under Louisiana's Term Limits law, Article 3, Section 4(E) of the Louisiana Constitution, Democrat state senator Cleo Fields was precluded from running for re-election where he had been elected to finish the term of a resigned predecessor in office, and then elected to two subsequent terms, since he had served long enough to constitute the maximum "two and one-half terms," under Louisiana's term limits laws. In reaching this conclusion, the court explicitly refused to apply a statute, passed by the legislature, intended to circumvent Article 3, Section 4(E) of the Louisiana Constitution and keep Mr. Fields in office.

On Tort Reform

  • Lacoste v. Pendleton Methodist Hospital, LLC (2007)

Over the strong dissenting opinion of Justice Jeannette Theriot Knoll, the majority opinion, written by Justice Pascal Calogero, held (1) that limitations on the legal liability of Lousiana healthcare providers, as set forth in the Louisiana Medical Malpractice Act could be circumvented by an ordinary negligence cause of action; and (2) that such a cause of action was permissible where a New Orleans hospital lost power during Hurricane Katrina, resulting in the death of a patient on life support.

References