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As Hurricane Katrina and growing floodwaters turned the New Orleans business district into a legal ghost town last week, officials at the Fifth Circuit U.S. Court of Appeals were making plans to relocate the court. Several breaks in the levees that surround the city caused water to rise around the marble walls of the John Minor Wisdom U.S. Court of Appeals Building, which houses the Fifth Circuit. The city’s electricity is expected to be out for a month or more. “We can’t return to the building anytime soon,” says Carolyn Dineen King, chief judge of the Fifth Circuit. “So we have to have an alternative site. The question is where?” Houston, where King’s chambers are located, may be a logical choice. King said last week that the temporary location of the court would be selected by Friday, the day after Texas Lawyer’s press time. “There’s a natural inclination on the part of our employees to want to be near New Orleans. And so that’s what we’re trying to look at,” says King, who adds that the court employs about 200 people at its base in New Orleans. “We’re looking at Houston, and we’re looking at several locations.” One three-judge panel held arguments in three insurance appeals and a criminal case last week in Austin’s federal courthouse, as all of the judges on the panel lived in Austin or within driving distance of the city, King says. A panel is scheduled to hear arguments this week in Houston’s Bob Casey U.S. District Courthouse. Judge Patrick Higginbotham says he and the members of his panel figured last week that there was no reason why they couldn’t continue to hear arguments in Austin � at least in the appeals that involved Texas lawyers representing parties on each side. “So I simply looked down the list of cases and picked up the phone and called the lawyers,” Higginbotham says. “I already had the time blocked out.” King says she is not sure when the court will resume regular operations. In the meantime, the Fifth Circuit extended filing deadlines. And the court instructed lawyers not to send any filings to the New Orleans courthouse. Further instructions about where to direct emergency matters can be found on the Fifth Circuit’s Web site at www.ca5.uscourts.gov. New Orleans has a history of surviving natural disasters. One of them, 1965′s Hurricane Betsy, destroyed a New Orleans high school, forcing the John Minor Wisdom U.S. Court of Appeals Building to be used as a substitute school for five years. And the Fifth Circuit judges have planned for something on the order of Katrina for a long time, King says. A week ago, when meteorologists began warning of the storm, court staff started moving some files from the first floor to the second floor in anticipation of flooding. On Aug. 27, the court cancelled its oral argument schedule for the coming week, and staff was told to leave the city for their own safety, King says. “We didn’t want anyone to stay out of a sense of duty, that’s for sure,” King says. “The most important thing in a situation like this is people’s lives. Everything else is secondary.” Don Hunt, a partner in Lubbock’s Mullin Hoard & Brown, landed in New Orleans on Aug. 27 for an argument in a lending law appeal at the Fifth Circuit. It wasn’t until he reached the Lafayette Hotel near the Fifth Circuit courthouse that he learned the argument had been cancelled. After attempts to leave the city the next day failed � rental cars were impossible to get and cabs were hard to find, he says � Hunt ended up staying at the hotel during the hurricane. The hotel sustained no damage. He even walked over to the Fifth Circuit on the morning of Aug. 29, thinking there would be a notice posted about the rescheduling of arguments. The courthouse was deserted but looked like it was in good shape, Hunt says. “There was a lot of metal in the street. Who knows if it came off the Fifth Circuit?” Hunt says. “But it seemed to survive the storm pretty well.” But that was before the levees surrounding New Orleans broke and water started to rise in the city on Aug. 30. Hunt and an associate with his firm, Lawrence Doss, convinced the owner of the hotel to let them join a caravan of four cars carrying the owner’s family out of the submerged city. Hunt and Doss made it to Baton Rouge, went to the airport and were back in Lubbock by 7:15 p.m. “It was through the kindness of people, asking and extending. That’s all,” Hunt says of his escape from New Orleans. “We had enough sense to get out when we needed to.” The jurisdiction of the Fifth Circuit includes Texas, Louisiana and Mississippi. Of the court’s 15 judges, only three of them live in New Orleans � Jacques Wiener, James Dennis and Edith Brown Clement. King says all of the judges who live in the city have relocated and are safe. The judges are well aware that it’s best to get out of the city in a hurry when a serious storm threatens. That was the case about a year ago when Hurricane Ivan hit New Orleans, flooding much of the city during a week all of the Fifth Circuit judges were in town to hear an en banc argument, King says. Some of the judges were stuck in New Orleans as the city was evacuated while others just barely made it out of the city. “We waited too long to leave,” King says. “We learned that you have to make the decision to leave 72 hours before landfall. Otherwise, you can’t get out.” Higginbotham remembers that trying to evacuate New Orleans during Hurricane Ivan was a nightmare. Traffic was backed up so badly that the cab he rode in overheated. He hailed another cab and made it to the Louis Armstrong New Orleans International Airport just in time for the last flight out. “It was by the hair of our chinny-chin-chin,” Higginbotham says. For now, King says her office in Houston is serving as the court’s unofficial clerk’s office, handling emergency matters, such as death penalty stays. “We are handling only extreme emergencies,” King says. “If you need a stay of execution, we’ll do that.” Many of the court’s documents are stored on computer, King says. All of the court’s files are backed up on servers located in Baton Rouge and Shreveport, La., King says. But not every document is filed electronically with the court, says David Schenck, an appellate partner in the Dallas office of Jones Day. “Everyday, they get Fed Ex deliveries that would dwarf most major corporations,” says Schenck, a former Fifth Circuit law clerk. The water will have to rise pretty high before it hits the first-floor clerk’s office, several lawyers say. The front steps to the courthouse entrance are a good 6-foot climb. King says she expects the basement of the courthouse has flooded, which will compromise the building’s electrical system, and that the roof may have sustained some damage. Should the court remain closed for an extended period of time, the Fifth Circuit judges have the authority to hold arguments in cities outside of New Orleans, Schenck says. “You’ve already got four [Fifth Circuit] judges in Houston. It’s a big city with a major airport,” Schenck says. “If you have to have argument there, it would be fine.” John Council is a reporter with a Recorder affiliate based in Texas.

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