New Report Highlights ‘Activist’ Tendencies of the Louisiana Third Circuit Court of Appeal

BATON ROUGE, LA -The Louisiana Third Circuit Court of Appeal has issued an alarming series of ‘activist’ decisions, according to a new report released today by the non-partisan legal watchdog group, Louisiana Lawsuit Abuse Watch (LLAW).


“Our report highlights numerous cases where the 3rd Circuit has repeatedly ventured outside of its narrowly defined role- asserting, seemingly, that its judgment is superior to that of the Legislature, the Louisiana Supreme Court and finders of fact who serve on Louisiana juries,” said Melissa Landry, executive director of LLAW.


Data from the report also shows that the Louisiana Supreme Court has overturned more rulings in civil cases from the 3rd Circuit than any other appellate court in the state. Of all the circuit court decisions in civil cases that have been reversed by the state’s high court since 2008, nearly 40% originated from the 3rd Circuit.


“The Louisiana Supreme Court has rebuked the 3rd Circuit for erring in amending jury verdicts and repeatedly ignoring the latest expression of law from the state’s high court, in order to achieve a desired outcome,” Landry said. “Taken together, these cases serve as strong evidence of the court’s tendencies toward judicial activism.”


According to national legal analyst and author Colleen Pero, the most accurate layman’s definition of “judicial activism” is a “judge who or a court that possesses a tendency to write new law or establish public policy from the bench rather than apply existing laws to the facts and questions before them.” In an attempt to better define the characteristics of judicial activism, Pero established five indicators of an activist court. “If any of these indicators properly describe a court or its decisions, the court is, by definition, an activist one,” Pero wrote.


A review of recent decisions from the Louisiana 3rd Circuit Court of Appeal reveals the presence of four out of the five of indicators:


  • Oliver v. Magnolia Clinic- This case illustrates the inconsistent application of a well-established legal statute by the 3rd Circuit in an apparent attempt to manipulate the law to achieve a preferred outcome – namely a higher award for the plaintiff.

  • Arabie v. CITGO- The trial court and the 3rd Circuit apparently ignored a clear expression of public policy by the Louisiana Legislature; acted to import and apply laws from another state; and selectively applied the law to facts to support a desired outcome.

  • Bourque v. Essex Insurance Co.- In this negligence suit, the 3rd Circuit invalidated the findings of two Louisiana juries, took the unusual step of conducting a de novo review, and awarded the plaintiff damages of more than $1.2 million.

  • Guillory v. Lee & Menard v. Lafayette Insurance Co.- In these cases, the 3rd Circuit reportedly erred in amending and reversing the findings of Louisiana juries and abused its discretion as an appellate court by substituting its own factual findings for those of the original triers of fact.

  • Jane Doe v. Southern Gyms & Price v. Martin- The 3rd Circuit appears to have misinterpreted long standing legal standards as they relate to the plaintiffs’ burden of proof in class action certifications.


“The implications of the 3rd Circuit’s march toward judicial activism are far reaching for Louisiana and the business community in particular as it is apparently becoming increasingly difficult for civil defendants to receive a fair shake in court,” Landry said. “This is of particular concern given the unprecedented amount of new investments that are pouring into southwest Louisiana at the moment. We hope our report may help shed some light on the current legal landscape and inspire discussion about how we can improve it.”