The Founding of the Supreme Court of Louisiana Historical Society and
Its Connection to Restoration of the Supreme Court Building
Judge James L. Dennis
United States Fifth Circuit Court of Appeals
Over the years I have been proud of the growth of the Supreme Court of Louisiana Historical Society and the success of its first major project – the restoration of the Louisiana Supreme Court building at 400 Royal Street – as well as the parts we all played in their beginnings.
Actually the stories of the founding of the Society and the restoration of the building are inextricably linked. After we on the Louisiana Supreme Court decided to undertake the restoration, our first major hurdle was to explain our plan to then Governor Treen and gain his support for the project. He agreed to do so and during his administration the first architects were selected and the original plans of the reconstruction were drawn.
But we encountered major obstacles from the beginning. First, a cornice fell off the building, and its replacement added a significant amount to the cost of the restoration. Then, asbestos abatement was delayed inordinately by the Wildlife and Fisheries Commission’s continuing occupancy of work space for some of its employees in the building. This in tum delayed the whole project because asbestos abatement absolutely had to be done before construction workers could enter the building, and, of course, it could not be done while the Wildlife employees occupied any part of the building. The Commission claimed it lacked funds to relocate the employees in other office space.
Soon we were asking for and receiving the help of a new Governor, Buddy Roemer. Our major accomplishment during his administration was obtaining the legal transfer of the building from the Wildlife and Fisheries Commission to the Supreme Court. That did not come easily. We had thought it would be a simple matter for the Governor to order the Commission to relinquish the property and have the Legislature approve the transfer in a quick resolution! The Commissioners, however, decided to buck the Governor and threatened to embroil us all in a legislative battle. Governor Roemer ultimately worked it out. How, I’m not sure, but the talk and rumor was that the Commission withdrew its opposition after somehow receiving a substantial amount of federal funds for additional wildlife habitat.
After gaining legal possession, the Supreme Court immediately held a ceremonial sitting in the building amidst fallen debris and flying pigeons. We wanted to ostentatiously publicize the Court’s right and title to the building and our plans for its restoration because of perceived threats to our using the old courthouse for, of all things, a courthouse!
The lack of local political support for the project was incredible. Mayor Barthelemy was rumored to have hosted a group of French business persons and welcomed their interest in converting the old courthouse into a vertical shopping mall. Editorials periodically appeared in the media against the building as an eyesore and in favor of razing the structure and replacing it with a park. There were frequent flurries of talk of a casino if that type of gambling was ever excepted from the definition of illegal gambling, like parimutuel racing had been for years. We appeared often on TV, radio, and before citizen groups and the Times Picayune editorial board, arguing that the return of the Court, a former living use, to the French Quarter, bringing with it the restoration and re-occupancy of the former local, state, and federal courthouse, would help to revitalize and sustain the Quarter as New Orleans’s oldest and most valuable tourist attraction. We described, in comparison, the successful renovation of a part of the old City of Montreal, and stressed that the advocates of that project had said that the key to their success was that they had emphasized changes and improvements that returned former living uses to the area.
All of this serendipitously set the stage for the birth of the Supreme Court of Louisiana Historical Society.
When Governor Edwards took office for the last time, the talk of turning the 400 Royal Street Courthouse into a casino, perhaps with his blessings, increased. Prior to asking him to support, rather than oppose, the Supreme Court’s restoration of the building, I felt it extremely important for us to have the backing of prominent and politically active attorneys to whom he might lend a favorable ear. It occurred to me that perhaps the best strategy would be to quickly organize a Supreme Court Historical Society, similar to that of the United States Supreme Court and several other states, to demonstrate broad support for the project by attorneys and other citizens throughout the state. As the first step, two lawyers, Eldon Fallon (who later became a U.S. district judge) and James Coleman were recruited to head up a proposed board of directors. Next, other attorneys were invited to serve on the board, taking care to choose persons who were either close to or friendly toward the Governor. I made sure that everyone understood that the Society would be a permanent historical organization but that its first major project would be to assist the Court in restoration of the courthouse. Eldon and Jimmy gave me a letter from them addressed to the Governor on behalf of the proposed board, all of whom consented to be named on the letterhead, informing the Governor of the Society’s founding and of its full devotion to supporting the Supreme Court in restoring its 400 Royal Street courthouse.
I carried the letter in my pocket when our entire court called upon the Governor at the mansion. I told him that we had come to seek his active support to finish the restoration project during his administration so that his name would appear on the building plaque along with the Court. He immediately said something like, “I don’t know why you fellows want that old building, but if that’s what you want, I’ll support you wholeheartedly.” I sensed that one or more of his friends on the recently formed Society board may have already bent his ear – he was usually a step or two ahead of everyone who came to see him anyway. So, instead of the board’s letter, I pulled out a laundry list of things we needed done to facilitate the renovation, such as moving the Wildlife and Fisheries employees out of the building so that asbestos abatement could be done. He agreed to every item on the list, telling his executive counsel, Bill Roberts, in our presence to see that they were carried out.
Of course, it was not all smooth sailing after that, but at that point we had made significant progress: we had initiated not only a historical society but also an effective support organization, with a dynamic board and two unexcelled leaders; we had blunted any opposition from within the executive branch; and the Governor helped us in many ways, some of which we had not expected. For example, he allowed the Court to confer with him and have input in the selection of a new architect for the project. With our support and approval, Pio Lyons was selected to become the architect of the restoration. We could not have made a better choice. Pio masterfully steered all aspects of the restoration into a superbly successful completion.
One short vignette about the building itself: It is not true as some believe that the Court or any of its members had long been seriously interested in or maneuvering for the restoration of the 400 Royal Street property. Instead, we became dedicated to this goal by a tortuous, non-linear route.
It is true that many individuals had speculated upon some type of restoration previously. I had heard that either the Criminal District Court or the Civil District Court of Orleans Parish had conducted a somewhat thorough study but concluded that it was not feasible for them. I became acquainted with this when I visited Mayor Dutch Morial, with whom I had served in the legislature. My thought was that the Supreme Court might want to add on to the front of its woefully outgrown building soon. Instead of adding to our building, however, he encouraged us to think about the old building at 400 Royal, which he and others had once contemplated using to house the court of appeal, saying that it could be restored as a magnificent edifice. Nevertheless, when we later, through the arrangement of Eugene Murret, our Judicial Administrator, had a study done by Walter Sobel, a nationally known courthouse architect from Chicago, none of us were much interested in 400 Royal or in renovation, rather than new construction. For one thing, it seemed too problematic, we’d have to bring in the Court of Appeal and the Attorney General to sell the Legislature on the idea as a rent saving project. Mr. Sobel sketched out four alternatives. Two involved new buildings on likely pieces of property in the city. One was a plan to add on to the Loyola Street Courthouse. Finally, he proposed the renovation of 400 Royal Street. As I said, there was not much interest in the renovation idea. We consumed most of his time with us discussing the other alternatives. Finally, he said, “Look, I have to leave tomorrow; I suggest that you owe it to yourselves to let me walk you through that old courthouse. It has some magnificent material in it that cannot be replicated today.” So we did.
The place was a shambles inside. The elevators, of course, had stopped working years before. The Wildlife and Fisheries Commission probably had never spent a dime on building maintenance. As we walked up the stairs and toured each floor we began to get a better idea of how big it was. Finally, when we reached the fourth floor, I looked up and the ceiling seemed to shoot up from 20 feet to about 30 or 40 feet, I remembered the beautiful semi-circular courtroom on the same floor where I had argued a case before the U.S. Fifth Circuit in about 1965. I thought silently, “This is where the Supreme Court belongs.”
As we came away from the building later, we began to discover that the old courthouse had sold itself to many of us. We soon came to a consensus – we were going to try to return the Court to the French Quarter. As we pursued this plan, the Old building ignited our imaginations even more. If we could bring this about, we thought and dreamed, who else, what other state, would have anything like this magnificently restored courthouse in such a historic and beautiful setting?
Much more had to be done between those beginnings and the fruition of the Society and the Courthouse restoration that has now been achieved.
I am gratified to have labored in this good cause alongside Justice, later Chief Justice, Pascal Calogero and other members of the Court and staff from the early 1980’s until I left the Supreme Court to become a federal circuit judge in October, 1995. We spent many long exhausting hours and days on the road to Baton Rouge, appearing in the role of supplicants before sometimes skeptical committees. We spent hours waiting near the house or senate floor in hopes of getting a few minutes with hard to catch members. We ate late, too late, dinners with legislative members, with a full day of court work ahead of us early the next morning. We all had to prepare for our regular jobs. I had to think like a calm analytical judge rather than a gregarious politician.
After the advent of the Society in 1992 we received marvelous support and strength from Eldon Fallon and Jimmy Coleman and the members of the Society. I know that Chief Justice Calogero courageously fought many additional decisive battles after I departed in 1995. I give him, Eldon, Jimmy, and the Society’s members full credit for overcoming all of the considerable remaining obstacles and actually completing in magnificent form the goals which seemed almost impossible in the beginning. There are few undertakings in which I am more gratified to have participated as a public officer than the restoration of the present Supreme Court building and in the founding and nurturing of the Supreme Court of Louisiana Historical Society.
My only regret is that I could not be there to help in the final stage of the restoration saga. There’s nothing quite like a good fight alongside great colleagues for a noble cause in which we truly believe.
The judicial system of Louisiana has its roots in the colonial governments established by France and Spain. Prior to 1712, there was nothing more than the personal rule of explorers. In that year, a French charter was granted creating a Superior Council with both executive and judicial powers. In 1716, the Council was reorganized and its judicial function was as a court of last resort for all civil and criminal cases, without cost to litigants. The Senior Councilor was president of both the Council and the general trial court for the territory. Subsequently, when the Western Company became the grantee of the charter, it was authorized to appoint and remove trial court judges.
There were various modifications to the judicial system as the territory grew and as control over it changed. The most significant occurred in 1769 when control over the territory passed to Spain. The Superior Council was replaced by the Cabildo, composed of executive judicial officers called regidors and alcaldes. The alcaldes were the judges of general jurisdiction in New Orleans and were selected by the regidors, who obtained their offices by purchase. In minor cases, the judgments of the alcalde were final while appeals were heard by a three judge court composed of two regidors and the trial alcalde. Outside of New Orleans, each parish had ecclesiastical judges and military judges, aided by syndics (a magistrate or assistant at law) with the military judges exercising general trial powers. In all case, final authority was held by the Governor-Intendant.
With minor changes, this judicial structure lasted until 1802 when Spain ceded Louisiana to France. The French abolished the Cabildo but had not set up a new judicial system when, in 1803, the territory became part the United States.
The first judicial officer appointed by the United States was W.C.C. Claiborne, the Governor of Mississippi Territory, who was one of the commissioners appointed to receive the territory from France. President Thomas Jefferson vested him with all the powers, including judicial, exercised by the Governor-General and Intendant under the Spanish regime. Claiborne directed that the parish officials who had exercised judicial power under the Spanish were to continue in office. In New Orleans, to replace the Cabildo, Claiborne established a Court of Pleas of seven judges with limited civil and criminal jurisdiction. Claiborne retained original jurisdiction in more serious cases and appellate jurisdiction over the Court of Pleas.
In 1804, Congress vested the judicial power of the territory in a three judge Superior Court and in such other courts as the Legislative Council might create. The Superior Court, a circuit court, was vested with original jurisdiction in all criminal cases, exclusive jurisdiction in capital cases, and original and appellate jurisdiction in civil cases involving $100 or more. The Superior Court required juries in capital cases and in other cases upon the request of a party. It held its first session in November, 1804.
Shortly after this, the Legislative Council divided the territory into twelve counties, providing for each a county judge with criminal jurisdiction in all but capital cases and limited civil jurisdiction. Jury verdicts were conclusive on matters of fact, rulings on law could be challenged by bills of exception. The Governor was also authorized to appoint justices of the peace, who were given final jurisdiction over civil cases of less than $50 and served as committing magistrates. The Legislative Council also regulated practice in the courts, but the Superior Court could adopt rules not inconsistent with the statutes.
Appeals were often tried before a jury, and even without one the court reviewed the facts. The territory was divided into five appellate circuits, with the court sitting in each in accordance with legislatively set terms.
In 1807, the new popularly elected legislature abolished the counties and county courts and created a separate court in each of the nineteen parishes. These courts were vested with unlimited civil jurisdiction and very limited criminal, with an appeal to the Superior Court in most cases. Parish judges, in addition to their judicial duties, also performed executive functions.
This judicial structure remained intact until Louisiana became a state and adopted the Constitution of 1812. It included a short judiciary article which created only a Supreme Court, leaving the structure of the remainder of the court system to the legislature. The Supreme Court was to be composed of not less than three and not more than five judges (the term “justices” was not introduced until the Constitution of 1845) appointed by the Governor to serve during good behavior. Its jurisdiction was appellate only, limited to civil cases involving more than $300. The state was divided into two districts with the court directed to sit in each at specified times. Judges were liable to impeachment or removal by the Governor upon the address of three-fourths of each house of the legislature. When giving judgment, all judges were required, when possible, to refer to the law upon which the judgment was based and in all cases to give the reasons on which the judgment was founded.
The first legislature of Louisiana in 1813 adopted a judiciary article which required Supreme Court judges, any two of whom constituted a quorum, to be “learned in the law.” Appeals were heard on a transcript of record rather than the original record. Judgment was to be given as justice required, and the court construed the act as giving it power to review the facts in most cases. The court was required to sit in New Orleans and Opelousas. It was given supervisory power in aid of its jurisdiction and was authorized to make rules regulating procedure not inconsistent with law.
The Supreme Court construed its powers narrowly, holding that it did not have a general superintending power over lower courts, and it was only after some hesitation that it held it could order a lower court to hear a case over which the latter court had jurisdiction. The court also interpreted narrowly the requirement that judges give reasons for their judgments, holding that the judge’s statement that he believed the plaintiff’s claim to be correct was sufficient.
The spreading Jacksonian philosophy of government, emphasizing popular control, resulted in the Constitutional Convention of 1844, which adopted a judiciary article much more detailed than its predecessor of 1812. It provided for a Supreme Court composed of a chief justice and three associate justices appointed by the Governor for eight year terms. Its jurisdiction was expanded to include issues of law, criminal cases where a sentence of death, hard labor, or fine over $300 was imposed, and cases involving penalties imposed by municipal corporations. The court was directed to sit in New Orleans and wherever else the legislature required.
The 1845 Constitution lasted only seven years, being replaced by the Constitution of 1852 which further emphasized the democratization of government. The most significant changes were to make all judges elective and to reinstate the power of the legislature to create the trial court system. The Supreme Court was enlarged to five, the chief justice to be elected at large and the four associate judges from districts, for ten year terms. No qualifications were fixed for the justices.
All judicial offices, except the office of justice of peace, were made appointive by the 1864 Constitution. The Convention of 1864, however, was unwilling to return judges to a life tenure basis. Supreme Court justices were to serve eight year terms, and judges of the trial courts were to serve for six years. Salaries of the Supreme Court justices were raised one thousand five hundred to seven thousand five hundred dollars for the chief justice and seven thousand dollars for associate justices. Judges might now be addressed out of office by a simple majority of the members elected to each house. The power which had been given to the legislature in 1852 to restrict the jurisdiction of the Supreme Court in civil cases to questions of law only was withdrawn by its omission in the Constitution of 1864.
In 1868, the judiciary article underwent considerable change. Everything was changed but the title and three articles. The Supreme Court’s appellate jurisdiction was revised to extend to all cases involving a tax, toll, or impost of any kind or any fine, forfeiture, or penalty imposed by a municipal corporation, whatever the amount involved, and to all other cases where the amount involved exceeded five hundred dollars.
No change was made in the Court’s appellate jurisdiction in criminal cases. Supreme Court justices now must be citizens who had practiced law for five years. In the event of recusation by one or more justices in any case, district judges might be called in to sit in their place. The vote required for legislative redress was increased from a simple majority to two thirds. The legislature was prohibited from attaching any nonjudicial duties to the Supreme Court or district court. Judges of both courts were forbidden to receive any fees or compensation other than their salaries for any official duties performed by them.
The end of Reconstruction resulted in the 1879 Constitution, the first of Louisiana’s long constitutions; the judiciary article alone contains sixty-eight sections. It vested the judicial power in a Supreme Court, courts of appeal, district courts, and justices of the peace. The size of the Supreme Court remained at five, but the justices were appointed by the Governor. The justices had twelve-year terms, were selected from four districts, and had to have certain qualifications, including ten years of law practice. The court’s jurisdiction in civil cases required a $1,000 minimum and extended to divorce and separation cases, while in criminal cases it remained limited to legal questions. The court was also given “control and general supervision over all trial courts,” but this was not interpreted to give the court power to review any case on issues of law or fact. The Supreme Court was directed to appoint a reporter to publish its opinions.
To reduce the Supreme Court’s caseload, five courts of appeal were created to hear appeals in cases involving more than $200 but less than $1,000, with power to review both law and facts. Each court of appeal was composed of two circuit judges selected by the legislature for eight year terms.
The 1898 Constitution did not substantially change the 1879 judiciary article. The Supreme Court’s jurisdiction was expanded, the minimum value set at $2,000, and it was permitted to hear criminal cases in which the penalty exceeded a six-month prison sentence. In addition, the court was given exclusive original jurisdiction over the bar as well as power to determine questions of fact concerning its own jurisdiction. The position of reporter was abolished and the court was authorized to arrange for the publication of its opinions. It was prohibited, however, from printing concurring or dissenting opinions. New Orleans was fixed as the seat of the court and the senior justice was made Chief Justice. In 1904 the Constitution was amended to make the members of the court elective.
The Supreme Court, in part because it was far behind on its docket, received much attention in the Constitution of 1921. The court was expanded from five to seven justices, its term extended by one month, and it was authorized to sit in panels of three. The terms of the justices were extended to fourteen years and each was provided with a secretary. In addition to its supervisory power, the Supreme Court was given power to shift district judges for temporary duty where needed and to require reports from lower courts on their judicial business. In addition to its disciplinary powers over attorneys, it was also given authority to remove judges.
The Supreme Court under Judicial Article of 1974 and the Constitutional Amendment of 1980
In the year 2000, Supreme Court districts were reapportioned into seven new districts, with one justice elected from each of the districts.
The senior judge in point of service serves as Chief Justice under our Constitution. The Chief Justice is the chief administrative officer of the judicial system of our state, subject to rules adopted by the court. The court has supervision and control over all lower courts, administrative and procedural rule-making powers, and may assign a sitting or retired judge to any court. It considers applications for writs to review individual cases decided by the five courts of appeal and considers both criminal and civil remedial writ applications. The Supreme Court has exclusive original jurisdiction over disbarment proceedings, petitions for discipline and removal of judges, and fact questions involving its own appellate jurisdiction.
Under the 1974 Constitution, the court had direct appellate jurisdiction over cases in which a law or an ordinance had been declared unconstitutional and when a defendant had been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months had actually been imposed. The Louisiana Constitution was amended in 1980, effective July 1, 1982, transferring criminal appellate jurisdiction from the Supreme Court to the courts of appeal, except in cases where the death penalty has actually been imposed. At that time the Court of Appeal, Fourth Circuit, the busiest court of appeal in the state, was split to form the Fourth and Fifth Circuit Courts of Appeal. The Supreme Court retained jurisdiction to review judgments of the courts of appeal in both civil and criminal cases. Under our Constitution the jurisdiction of the Supreme Court in civil cases extends to both law and facts. In criminal matters, its jurisdiction extends only to questions of law.