The Louisiana Judiciary: In the Wake of Destruction

• Author: Greg G. Guidry
• Position: Associate Justice, District No. 1, Supreme Court of Louisiana
• Pages: 1145-1177

Page 1145

Introduction

Hurricane Katrina stands as the most destructive natural disaster in United States history. ¹ Due to the catastrophic damage inflicted throughout the coastal regions of Louisiana, Mississippi, and Alabama, it was the costliest ² and most devastating Atlantic hurricane in recorded times. ³ Only Hurricane Rita surpassed it as the most intense hurricane to enter the Gulf of Mexico. ⁴ The combination of these two storms wreaked havoc from the eastern border of Texas to the panhandle of Florida, with the most destructive impact on the state of Louisiana.

With over one million evacuees ⁵ and more than 200,000 homes destroyed in the New Orleans metropolitan area alone, ⁶ the stories associated with Hurricanes Katrina and Rita are too voluminous to record. The impact and recovery differ for each person, family, business, organization, and community affected. Over the intervening years, innumerable events have been recounted Page 1146 throughout the media, while the response and recovery has been analyzed by government, non-profit and private institutions, and commentators from many professions.

The literature addressing Louisiana's court system generally focuses on the deleterious losses that paralyzed the legal community as a whole. Analysis of the judiciary's response to the two hurricanes primarily focuses on the sufficiency of preparations for efficient continuity of operations and disaster recovery. The judicial branch has been closely scrutinized for the role it played in the criminal justice system's post-disaster contingency planning and ability to adapt to adversity. The commentary sheds light on the chaos surrounding the plight of the criminally accused, who were temporarily unable to access the courts amidst the collapse of the public defender system. ⁷

The purpose of this Article is to offer insight into the intimate details of the state courts' response when faced with the near collapse of the legal system's infrastructure. To be sure, the wind and flood damage resulted in many foreseeable challenges for the judicial system. Yet, the judiciary, like the other branches of state government, grappled with a vast array of post-storm issues that were not anticipated even with the recovery planning put in place after the horrific events of September 11, 2001. ⁸ These post-storm issues include the magnitude of catastrophic destruction, the long- term displacement of the entire New Orleans population, the paralysis of neighboring cities and states with the mandatory evacuation of coastal communities, and the scope of inadequate governmental response. The judiciary navigated through unchartered territory in promptly addressing the logistical mayhem associated with the mass closure of courts and the displacement of Louisiana jurists. ⁹ The Louisiana Supreme Court, in its capacity as administrator of justice, with the collaborative efforts of the Page 1147 executive and legislative branches of state government, became proficient in addressing separation of powers issues barring access to the courts in the wake of the disasters. These measures represented an attempt to ensure the full constitutional protections afforded to Louisiana citizens, including the criminally accused.

In the five years since the storms, there has been no comprehensive study documenting the supreme court's establishment of a continuity of operations, recovery measures, and the pressing issues facing the Louisiana judiciary as it prepares for the future. Hopefully, this Article will prove to be beneficial in that respect. More importantly, it is written with the hope that it will educate judicially related entities in preparing and coping with future disasters.

I Historical Background

A New Orleans: The Center of the Louisiana Judiciary

The Louisiana Supreme Court is the highest state court in Louisiana and is located in the city of New Orleans. It includes seven justices who are elected for ten-year terms in partisan elections. ¹⁰ The court has its legal roots in the eighteenth century French and Spanish governments that occupied the territory later acquired by the United States pursuant to the Louisiana Purchase in 1803. ¹¹ The massive white marble and granite Louisiana Supreme Court building, completed in 1910, is located down the street from the historical sites that served as the headquarters of the earliest French and Spanish rulers. In addition to the supreme court, the building serves as home to the Louisiana Fourth Circuit Court of Appeal, the Louisiana Judicial Administrator's Office, the Louisiana Supreme Court Museum, the Louisiana State Law Library, and satellite offices for a small cluster of state court-related agencies. ¹²

New Orleans is located at the mouth of the Mississippi River, which forms part of the largest river system on the North American continent. ¹³ Being below sea level, the city has little elevation to protect from flooding, a life-threatening issue for the hurricane- prone area. ¹⁴ In the late 1800s, aggressive measures were taken to Page 1148 reduce the city's flooding to accommodate the growing population that relocated to the bustling port along the river. ¹⁵ While levees and drainage canals had already been built in many areas, land was further made available through the construction of complex wooden screw pumps, many of which were still in operation when Hurricane Katrina made landfall. ¹⁶ The goal was to pump flood waters into canals, which would channel the water into Lake Pontchartrain, an outlet to the Gulf of Mexico, and surrounding swamps. These protective measures spared the city from flooding on innumerable occasions through the decades. ¹⁷ However, the protection faltered in the summer of 2005 with Hurricanes Katrina and Rita. Storm surge and poorly constructed levees that breached in several locations ¹⁸ quickly turned New Orleans into a soup bowl for water pouring in from Lake Pontchartrain and the Mississippi River. ¹⁹ The toxic water sat for days and, in many areas, weeks until it could be pumped out.

B Hurricane Katrina

Residents along the Gulf Coast annually adjust their daily lives in preparation for the threat of storms and hurricanes during hurricane season, the months of June through October. The year 2005 was no different. Hurricane Katrina formed as a tropical depression over the southeastern part of the Bahamas on Friday, August 23, 2005. ²⁰ Although it was quickly upgraded to a tropical Page 1149 depression, ²¹ it was not initially considered a serious threat to Louisiana. It weakened as it hit Florida on August 25, 2005, as a category one storm. ²² The following day, the hurricane entered the Gulf of Mexico, where it quickly reorganized and intensified. ²³State and local officials conducted a joint press conference asking residents to voluntarily leave the city based on predictions of tumultuous winds and severe flooding. ²⁴ Shortly thereafter, Max Mayfield of the National Hurricane Center (NHC) contacted the mayor of New Orleans to warn him of the potential impending disasters. ²⁵ It was only the second occasion that the director of the NHC called a public leader for such a purpose. ²⁶ A mandatory evacuation of the New Orleans area was called on Sunday, August 28, 2005, ²⁷ after Hurricane Katrina had become a monstrous category five hurricane with wind speeds in excess of 170 miles per hour. ²⁸ President George W. Bush issued emergency disaster declarations for counties and parishes throughout the Gulf Coast states, which shut down or reduced operations in various oil refineries and closed several major airports. ²⁹ The presidential Page 1150 orders did not include the coastal parishes of Jefferson, Orleans, Plaquemines, St. Bernard, St. Charles, and Terrebonne. ³⁰

Hurricane Katrina made landfall in Louisiana as a category three storm with sustained winds of approximately 125 miles per hour near Plaquemines Parish, ³¹ and 100 mile per hour gusts in Orleans Parish. ³² The water surge created a wall, estimated in some locations along the Gulf Coast to be as high as thirty feet, that obliterated everything in its path. ³³ The storm moved northward inflicting heavy damage to central Mississippi. ³⁴ At the end of the day, the intensity of the storm had taken an insurmountable toll on the coastal areas of south Louisiana. Storm surge and wind annihilated the lower half of Plaquemines Parish, ³⁵ and the storm surge from the Mississippi River Gulf Outlet (MRGO) ³⁶overtopped the levees in St. Bernard Parish, ³⁷ sending a deluge of water as high as rooftops that festered for weeks. ³⁸ In Jefferson Parish, drainage pump operators were evacuated, resulting in widespread flooding. ³⁹ Page 1151

In neighboring Orleans Parish, city leaders and residents were initially relieved that the storm's perilous east side skimmed past them. ⁴⁰ The sigh of relief was short lived. The next day, several breaks in the surrounding levee system were discovered. ⁴¹ Eighty percent of the city was submerged, with water running as deep as twenty feet. ⁴² From that day, any sense of normalcy vanished for affected Louisiana residents for months, or years in some cases. Thousands who did not heed evacuation warnings were left stranded in the heavily damaged Louisiana Superdome, ⁴³ the New...