Hughes III v. Johnson et al

Filing 38

ORDER & REASONS granting 31 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Dismiss. Accordingly, Justice Hughes' and Intervenors' claims are dismissed without prejudice. Signed by Judge Sarah S. Vance on 10/20/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFERSON D. HUGHES, III
ASSOCIATE JUSTICE OF THE
LOUISIANA SUPREME COURT
VERSUS

CIVIL ACTION

NO. 15-7165

BERNETTE J. JOHNSON, CHIEF
JUSTICE OF THE LOUISIANA
SUPREME COURT, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Chief Justice of the Louisiana Supreme Court Bernette J. Johnson and
Associate Justices Greg G. Guidry, Marcus R. Clark, and John L. Weimer
(collectively, Defendant Justices) move to dismiss plaintiff Justice Jefferson
D. Hughes’ complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure. 1 Defendant Justices move separately to dismiss the
complaint brought by intervening plaintiffs—Citizens for Clean Water and
Land PAC, LLC, Vincent Charles Bundrick, Cajun Pride, Inc., Robert L.
Walton, Bonnie Walton, John Keith Lamm, and Deborah Broussard Lamm
(collectively, Intervenors).2 For the following reasons, the Court finds that

1
2

R. Doc. 13.
R. Doc. 28.

plaintiffs’ claims are barred by the Eleventh Amendment to the United States
Constitution. Defendant Justices’ motions to dismiss are therefore granted,
and Justice Hughes and Intervenors’ claims are dismissed without prejudice.

I.

BACKGROUND
A. Justice Hughes
Justice Hughes’ complaint centers arounds two cases that the

Louisiana Supreme Court declined to hear—Robert L. Walton, et al. v. Exxon
Mobil Corp., et al., No. 2015-C-0569 (La.), and Vincent Charles Bundrick, et
al., v. Anadarko Petroleum Corp., et al., No. 2015-C-0569 (La.). In both
cases, Justice Hughes was recused from ruling on plaintiffs’ applications for
writs of certiorari by order of his fellow Justices, pursuant to La. Code Civ.
Proc. art. 159.3 Justice Hughes alleges that, in voting to recuse him from

3

Article 159 provides:
When a written motion is filed to recuse a justice of the supreme
court, he may recuse himself or the motion shall be heard by the
other justices of the court.
When a justice of the supreme court recuses himself, or is
recused, the court may (1) have the cause argued before and
disposed of by the other justices, or (2) appoint a judge of a
district court or a court of appeal having the qualifications of a
justice of the supreme court to act for the recused justice in the
hearing and disposition of the cause.
2

Walton and Bundrick, the four Defendant Justices violated Justice Hughes’
rights under the First and Fourteenth Amendments to the U.S. Constitution.
Justice Hughes sues Defendant Justices in their official capacities. 4
Justices of the Louisiana Supreme Court are elected to their posts by
popular vote. Justice Hughes was elected in 2012. 5 According to Justice
Hughes’ complaint, Clean Water, a political action committee, spent
$487,000 supporting Justice Hughes’ bid for a seat on the Court. 6 This
money was not given directly to Justice Hughes or his campaign committee,
but instead took the form of “independent expenditures” in support of
Justice Hughes’ candidacy.7 In accordance with federal election regulations,
Justice Hughes did not coordinate or communicate with Clean Water during
the 2012 election. 8 The $487,000 Clean Water spent in support of Justice
Hughes constituted 16 percent of all campaign spending in the eightcandidate race.9
Clean Water is, according to Justice Hughes’ complaint, devoted to
educating the public about land and water pollution problems.10 The law

4
5
6
7
8
9
10

R. Doc. 1 at 1.
Id. at 8.
Id. at 10.
Id.
Id. at 3.
Id. at 5
Id.
3

firm Talbot Carmouche, & Marcello—which represents the plaintiffs in both
Walton and Bundrick—contributed $360,000 to Clean Water in 2012.11 The
complaint alleges, however, that $275,000 of this $360,000 was spent on
“issue advocacy” designed to influence public opinion on environmental
issues, rather than on candidate-specific spending.12
Justice Hughes won his election in December 2012 and began service
as a Louisiana Supreme Court Justice.13

In March 2015, following

unfavorable rulings at the trial and appellate levels, plaintiffs in both Walton
and Bundrick filed applications for writs of certiorari to the Louisiana
Supreme Court. 14 Approximately a month later, defendants in both cases
filed motions to recuse Justice Hughes.15 The four Defendant Justices voted
to grant the Walton and Bundrick defendants’ recusal motions on November
12, 2015. 16 The order recusing Justice Hughes was entered without written
reasons, and it prevented the Justice from hearing argument in the two
cases. 17 On November 16, 2015, with Justice Hughes recused, the Louisiana
Supreme Court denied plaintiffs’ writ applications in both Walton and

11
12
13
14
15
16
17

Id.
Id. at 11.
Id. at 10.
Id. at 12.
Id.
Id.
Id.
4

Bundrick. See Walton v. Exxon Mobil Corp., 184 So.3d 25 (La. 2015);
Bundrick v. Anadarko Petroleum Corp., 184 So.3d 24 (La. 2015).
Justice Hughes alleges that, in forcing his recusal, the Defendant
Justices violated his rights under the First and Fourteenth Amendments.
According to Justice Hughes, the recusal orders violated his First
Amendment rights by preventing him from communicating his electoral
message to the public, for fear that the people he communicates with will
contribute to political action committees that support Justice Hughes,
leading to more recusals.18 Justice Hughes argues that his Fourteenth
Amendment rights have been violated because the Defendant Justices have
“singl[ed] him out for unfavorable treatment without adequate justification”
and “arbitrarily recus[ed] him from two cases without explanation or
recourse.”19 Justice Hughes brings his claims under 42 U.S.C. § 1983.20
In his prayer for relief, Justice Hughes seeks four remedies: 1) a
declaratory judgment that the recusal orders are unconstitutional and
unenforceable; 2) a declaratory judgment that the recusals violated Justice
Hughes’ First Amendment rights; 3) an order enjoining Defendant Justices
from recusing Justice Hughes in Walton and Bundrick; and 4) an order

18
19
20

Id. at 14.
Id. at 15.
Id. at 1, 4.
5

enjoining Defendant Justices from recusing Justice Hughes or any other
Louisiana Supreme Court Justice based on contributions to political action
committees.21
B. Intervenors
Intervenors are Clean Water and the six plaintiffs in Walton and
Bundrick: Vincent Charles Bundrick, Cajun Pride, Inc., Robert L. Walton,
Bonnie Walton, John Keith Lamm, and Deborah Broussard Lamm.
Intervenors’ allegations substantially mirror Justice Hughes’, with two
exceptions. First, intervenors allege that their own constitutional rights have
been violated by Justice Hughes’ recusal.

Second, besides challenging

Justice Hughes’ recusal, intervenors challenge the alleged recusal of Justice
Jeannette Theriot Knoll in the same cases.22

Intervenors, like Justice

Hughes, bring their claims under 42 U.S.C. 1983 and seek both injunctive
and declaratory relief. 23
C. Motions to Dismiss
Defendant Justices have moved to dismiss Justice Hughes’ complaint
and, separately, to dismiss Intervenors’ complaint pursuant to Federal Rules

21
22
23

Id. at 15. Justice Hughes also seeks attorney’s fees.
Id. at 21.
Id. at 21-22.
6

of Civil Procedure 12(b)(1) and 12(b)(6). 24 Because the Court finds that
plaintiffs’ claims are barred by Eleventh Amendment immunity, the Court
does not reach Defendant Justices’ arguments under Rule 12(b)(6).

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action

if the court lacks jurisdiction over the subject matter of the plaintiff’s claim.
Motions submitted under Rule 12(b)(1) allow a party to challenge the court’s
subject matter jurisdiction based upon the allegations on the face of the
complaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996); see also Lopez v. City of Dallas, Tex., No. 03-2223, 2006 WL
1450420, at *2 (N.D. Tex. May 24, 2006). In ruling on a Rule 12(b)(1) motion
to dismiss, the court may rely on (1) the complaint alone, presuming the
allegations to be true; (2) the complaint supplemented by undisputed facts;
or (3) the complaint supplemented by undisputed facts and by the court’s
resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac
Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro, 74
F.3d at 659. The plaintiff bears the burden of demonstrating that subject

24

R. Doc. 13; R. Doc. 31.
7

matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction that
does not implicate the merits of plaintiff’s cause of action, the district court
has substantial authority “to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Arena v. Graybar Elec. Co., 669
F.3d 214, 223 (5th Cir. 2012). Accordingly, the Court may consider matters
outside the pleadings, such as testimony and affidavits. See Superior MRI
Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015).
A court’s dismissal of a case for lack of subject matter jurisdiction is not a
decision on the merits, and the dismissal does not necessarily prevent the
plaintiff from pursuing the claim in another forum. See Cox, Cox, Filo, Camel
& Wilson, L.L.C. v. Sasol N. Am., Inc., 544 F. App’x 455, 456 (5th Cir. 2013).

III. DISCUSSION
Although no party has raised the issue of Eleventh Amendment
immunity, this Court may raise it sua sponte. Ysleta del Sur Pueblo v. State
of Tex., 36 F.3d 1325, 1336 (5th Cir. 1994) (“The State’s omission, however,
does not mean we are precluded from raising the issue sua sponte, because
the Eleventh Amendment operates as a jurisdictional bar.”); see also
8

Jefferson v. Louisiana State Supreme Court, 46 F. App’x 732, 732 (5th Cir.
2002) (“[E]leventh amendment immunity is a jurisdictional issue that
cannot be ignored, for a meritorious claim to that immunity deprives the
court of subject matter jurisdiction of the action.”).

“The Eleventh

Amendment bars citizens of a state from suing their own state or another
state in federal court unless the state has waived its sovereign immunity or
Congress has expressly abrogated it.” Raj v. Louisiana State Univ., 714 F.3d
322, 328 (5th Cir. 2013) (internal citations omitted). Section 1983 does not
abrogate Eleventh Amendment immunity, Khan v. S. Univ. & Agric. & Mech.
Coll. Bd. of Supervisors, No. 03-30169, 2005 WL 1994301, at *3 (5th Cir.
Aug. 19, 2005), and Louisiana has explicitly asserted its sovereign immunity
by statute. La. Rev. Stat. § 13:5106(A) (2010) (“No suit against the state or a
state agency or political subdivision shall be instituted in any court other
than a Louisiana state court.”).
The Louisiana Supreme Court, as an agency of the state, enjoys the
benefits of Louisiana’s Eleventh Amendment protection. See Jefferson, 46 F.
App’x at 732 (“The Eleventh Amendment clearly bars Jefferson’s § 1983
claims against the Louisiana Supreme Court, which is a branch of Louisiana’s
state government.”). And the Supreme Court’s immunity extends to its
Justices when they are, as here, sued in their official capacity. See Wallace
9

v. Texas Tech University, 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (“Suits
against state officials in their official capacity are considered to be suits
against the individual office, and so are generally barred as suits against the
state itself.”); Summers v. Louisiana, No. 13-4573, 2013 WL 3818560, at *4
(E.D. La. July 22, 2013) (holding that an official capacity claim against a state
court judge “would in reality be a claim against the state itself, and . . . would
be barred by the Eleventh Amendment”); see also Davis v. Tarrant Cty.,
Tex., 565 F.3d 214, 228 (5th Cir. 2009) (“Texas judges are entitled to
Eleventh Amendment immunity for claims asserted against them in their
official capacities as state actors.”).
Because the Defendant Justices are protected by Eleventh Amendment
immunity—and that immunity is undermined by neither abrogation nor
consent—plaintiffs’ claims may proceed only if they fall under the limited
exception articulated in Ex parte Young, 209 U.S. 123 (1908).

“In

determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry
into whether the complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon Maryland, Inc.
v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002) (internal
quotations and modifications omitted).
10

The Court begins with the second question: is the relief requested by
plaintiffs prospective? As noted, Justice Hughes and Intervenors each list
four items in their prayers for relief,25 and the lists are substantially similar.
Both parties request declaratory judgments that the Walton and Bundrick
recusal orders were unconstitutional and violated the parties’ rights. As
noted, however, neither Walton nor Bundrick is presently before the
Louisiana Supreme Court. See Walton v. Exxon Mobil Corp., 184 So.3d 25
(La. 2015) (denying application for writ of certiorari); Bundrick v. Anadarko
Petroleum Corp., 184 So.3d 24 (La. 2015) (same). In other words, plaintiffs
seek declarations that Defendant Justices’ past conduct violated federal law.
These claims are therefore retrospective, and Young will not save them. See
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993) (“[T]he [Young] exception is narrow: It applies only to
prospective relief, [and] does not permit judgments against state officers
declaring that they violated federal law in the past.”); Green v. Mansour, 474
U.S. 64, 68 (1985) (“We have refused to extend the reasoning of Young,
however, to claims for retrospective relief.”); see also Walker v. Livingston,

Justice Hughes also seeks attorney’s fees under section 1983. R. Doc.
1 at 16.
11
25

381 F. App’x 477, 479 (5th Cir. 2010) (“Declaratory relief is within Young’s
purview, but only when violations of federal law are threatened or ongoing.”).
Plaintiffs’ first requested injunction (to enjoin defendants from
recusing Justice Hughes in Walton and Bundrick) fails for the same reason:
the proposed injunction concerns past conduct. Therefore—to the extent the
controversy is not simply moot—the claim is barred by Eleventh Amendment
immunity.
Plaintiffs’ final request for relief is different. Plaintiffs ask for a
permanent injunction preventing the Defendant Justices from recusing any
Louisiana Supreme Court Justice from a case “based on contributions to
political action committees that supported” that Justice’s election.26 Here,
plaintiffs ask the Court to restrain future conduct, and the claim therefore
meets Young’s “prospective relief” requirement. However, plaintiffs have
failed to allege an “ongoing” violation of federal law, and Young therefore
remains inapplicable.
By their own terms, plaintiffs dispute the outcome of two decisions
made on the same day to recuse a single Justice from considering two related
writ applications, neither of which remained before the Louisiana Supreme

26

R. Doc. 1 at 15; R. Doc. 28 at 22.
12

Court at the time this suit was filed. 27 The Young exception is limited,
however, to “cases in which a violation of federal law by a state official is
ongoing as opposed to cases in which federal law has been violated at one
time or over a period of time in the past . . . .” Papasan v. Allain, 478 U.S.
265, 277-78 (1986); see also Cantu Servs., Inc. v. Roberie, 535 F. App’x 342,
345 (5th Cir. 2013) (Under Young, plaintiff must show that the alleged
violation of federal law “was not a ‘one-time, past event’ but an ongoing
violation.” (quoting S & M Brands, Inc. v. Cooper, 527 F.3d 500, 510 (6th
Cir. 2008)).

The limited past conduct alleged in the complaints is

insufficient to meet plaintiffs’ burden to plausibly show an ongoing violation
of plaintiffs’ constitutional rights.
In Cantu Servs., Inc. v. Roberie, 535 F. App’x 342, 345 (5th Cir. 2013),
the Fifth Circuit ruled that the plaintiff failed to allege an ongoing violation
for purposes of Young. In that case, Cantu, a vendor who lost a bid for a
food-service contract, alleged that defendant state officials violated its

Although Intervenors also allege that Justice Knoll was recused, this
recusal was allegedly based on her husband’s work as a plaintiff’s attorney in
“legacy” litigation that may be impacted by a ruling Walton and Bundrick.
R. Doc. 28 at 15. Justice Knoll’s recusal therefore has no bearing on whether
plaintiffs have alleged an ongoing violation of federal law under Young to
support “a permanent injunction enjoining Defendants from recusing
Justice Hughes and Knoll, and any other [Louisiana Supreme Court] Justice
from a case based on contributions to political action committees that
supported their respective elections.” Id. at 28.
13
27

constitutionally-protected right to a fair bidding process. Id. at 345. Cantu
sought an injunction, that would, among other things, prevent state officials
from entering into future food service contracts that excluded Cantu. Id.
Although the proposed injunction was clearly prospective, the court found
that Cantu failed to demonstrate an ongoing violation because it
demonstrated no “constitutionally protected interest that was continuing to
be infringed by the State officials.” Id. Instead, the court found that “[t]he
award process terminated with the issuance of a new contract.” Id.
“Consequently, there [was] no ongoing violation of law remediable by
prospective relief under Ex Parte Young.” Id.
As in Cantu, the alleged constitutional violation at issue in this case has
terminated; it ended when the Louisiana Supreme Court denied the writ
applications in Walton and Bundrick. This conclusion is buttressed by
plaintiffs’ requested relief. Plaintiffs seek an injunction barring all recusals
based on independent expenditures, no matter the size or context. Even
assuming that a rule or practice of forced recusals based on independent
expenditures violates the First Amendment, plaintiffs provide scant
allegations—aside from recusal orders in these two linked cases, which were
entered without written reasons—to support an inference that Defendant
Justices have instituted such a rule, or that future recusals are likely. The
14

allegation of a lone, past violation of plaintiffs’ rights is therefore insufficient
to meet Young’s “ongoing” prong. See Green, 474 U.S. at 68 (“[D]eterrence
interests are insufficient to overcome the dictates of the Eleventh
Amendment.”). Because Young does not apply to any of plaintiffs’ claims,
they are barred by the Eleventh Amendment and must be dismissed. 28

The Court notes that it lacks jurisdiction over at least some of the
claims brought in this case by the six plaintiffs in Walton and Bundrick for a
separate, independent reason. The Rooker-Feldman doctrine bars this court
from deciding “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005). This doctrine has been repeatedly applied to bar suit by
state-court litigants seeking review in federal court of a state judge’s recusal
determination. See, e.g., Price v. Porter, 351 F. App’x 925, 926 (5th Cir.
2009) (upholding dismissal under Rooker-Feldman of suit by state-court
litigant claiming state judge should have been recused); Smith v. Bender, 350
F. App’x 190, 193 (10th Cir. 2009) (“[T]he Rooker-Feldman doctrine bars
Mr. Smith from relitigating the refusal of the Justices of the Colorado
Supreme Court to recuse from his appeal.”).
28

15

IV.

CONCLUSION

For the reasons stated above, the Court GRANTS defendants’ Motions
to Dismiss.

Accordingly, Justice Hughes’ and Intervenors’ claims are

DISMISSED WITHOUT PREJUDICE.

New Orleans, Louisiana, this _____ day of October, 2016.
20th
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

16