2017 recent developments in legislative law &...

2017 RECENT DEVELOPMENTS IN LEGISLATIVE LAW & PROCEDURE

Jerry G. Jones1

TABLE OF CONTENTS

I. SPECIAL SESSIONS..........................................................................................................3

II. EVEN-YEAR REGULARSESSIONS.........................................................................................................................12

III. SELECTED NEW LEGISLATION...................................................................................15

IV. SELECTED RECENT CASES..........................................................................................18

V. FIVE FAST THOUGHTS ABOUT DRAFTING LEGISLATION...................................53

VI. SELECTED RECENT ARTICLES OFINTEREST.........................................................................................................................59

VII. CLOSING THOUGHTS ANDQUOTES............................................................................................................................60

1Chief Legislative Counsel, Louisiana Senate, [email protected] All rights reserved, November, 2017.

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mailto:[email protected].

i 2018 Regular Session - To convene at noon on Monday, March 12, 2018.Final adjournment no later than 6:00 p.m. on June4, 2018. (60 legislative days during an 85calendar-day period.)

Subject matter is General in nature; however, nomeasure levying or authorizing a new state tax,increasing an existing state tax, or legislating withregard to state tax exemptions, exclusions,deductions, or credits shall be introduced orenacted.

Procedural deadlines, session bulletins, legislationfiled, legislative history, and archived broadcasts ofcommittee and floor proceedings - www.legis.la.gov

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http://www.legis.la.gov

I. SPECIAL SESSIONS:

A. La. Const. Art. III, §2(B) -

"(B) Extraordinary Session. The legislature may be convened at other times by thegovernor and shall be convened by the presiding officers of both houses upon writtenpetition of a majority of the elected members of each house. The form of the petition shallbe provided by law. At least seven calendar days prior to convening the legislature inextraordinary session, the governor or the presiding officers, as the case may be, shallissue a proclamation stating the objects of the extraordinary session, the date on which itshall convene, and the number of days for which it is convened. The power to legislateshall be limited, under penalty of nullity, to the objects specifically enumerated in theproclamation. The session shall be limited to the number of days stated therein, whichshall not exceed thirty calendar days." (emphasis added).

B. General Object - State ex rel. Porterie v. Smith, 184 La. 263, 166 So. 72 (1935)

1921 Constitution - Art. 5, Sec. 14 - "The power to legislate, under penalty of nullity,shall be limited to the objects specially enumerated in the proclamation of the Governor,or petition and notice, convening such extraordinary session, and the session shall belimited to the time named therein, which shall never exceed thirty days."

Where proclamation included "appointment and election of public officers" as an object,this was a general object deemed sufficient to include an act providing for appointmentand election of additional police jurors. The Louisiana Supreme Court stated:

a. "The rule that the Legislature cannot legislate on a matter not designated in theGovernor's proclamation does not require as comprehensive and as clear anexpression of the subject of the legislation as is required in the title of an act. 59C.J. 528. Besides, 'Where a general object is described, the Legislature is free todetermine in what manner such object shall be carried into effect. 59 C.J. 527"(pp. 76-77).

b. "Section 14 of article 5 of the Constitution does not require that the object of theact, as if stated in its title, or that the subject-matter of the act, as if enacted, shallbe stated in detail in the call, but merely requires that 'the objects' or subjects to belegislated upon shall be designated therein, and such 'objects' or subjects may begeneral.

The rule is thus stated in 59 C.J. at page 527: 'The Governor's call or messageneed not state the details of the legislation to be considered, as such matters arewithin the discretion of the Legislature and beyond the control of the Governorexcept for his power of veto. Where a general object is described, the Legislature

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is free to determine in what manner such object shall be carried into effect."(Italics ours.)" (p. 76)

C. In the Matter of Angus Chemical Company, 679 So.2d 454 (La. App. 1 Cir. 1996)

(from West Summary) - Act of extraordinary session, which had effect of transferringappellate jurisdiction to review final permit actions, final enforcement actions anddeclaratory actions of Department of Environmental Quality (DEQ) in first instance fromCourt of Appeal to Nineteenth Judicial District Court, was germane to general object setforth in governor's proclamation convening extraordinary session and, thus, act did notviolate specific enumeration requirement of State Constitution; proclamation listed objectof session to include legislating “relative to administrative procedures, to provide for theeffect of a decision by an administrative law judge, the agencies affected by said law, andjurisdiction for appeals thereafter.”

(Court) - "while the Supreme Court's decision in Porterie dealt with the language of the1921 Constitution, inasmuch as article III, § 2(B) of the 1974 Constitution was adoptedfrom article V, § 14 of the 1921 Constitution without any substantive change, weconclude the Supreme Court's pronunciations in Porterie are applicable to the presentcase."

(Court) - "In Porterie, the Supreme Court specifically addressed the requirements of aproclamation for an extraordinary session, stating as follows:

Section 14 of article 5 of the Constitution [of 1921]does not require that the object of theact, as if stated in its title, or that the subject-matter of the act, as if enacted, shall bestated in detail in the call, but merely requires that “the objects” or subjects to belegislated upon shall be designated therein, and such “objects” or subjects may begeneral. (Emphasis added).

State ex rel. Porterie, 166 So. at 76. The Court further pointed out that the details of thelegislation at issue were beyond the control of the governor and were within the discretionof the legislature. State ex rel. Porterie, 166 So. at 76. This holding, that the object listedin the governor's proclamation may be stated in general terms, is consistent withsubsequent pronouncements by the Supreme Court. In Airey v. Tugwell, 197 La. 982, 3So.2d 99, 102 (1941), the Supreme Court defined the “object of a law” in the context ofthe “one object” and “indicative title” requirements of article III, § 16 of the 1921Constitution as “the aim or purpose of the enactment” and “its general purpose.”.

Thus, we conclude, in accordance with the pronouncements of the Supreme Court, thatalthough the proclamation convening the extraordinary session must specificallyenumerate each object that is to be considered by the legislature, the individual objectslisted may be stated in general terms. La. Const. art. III, § 2(B); State ex rel. Porterie, 166So. at 76." (emphasis added).

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D. Singer, 1 Statutes and Statutory Construction 5 (6th ed. 2002)- "Powers of SpecialSessions" - Excerpts

a. Interpretation of call - 5.3 - "The governor's call should be given a liberalinterpretation in favor of broad legislative power. The language of the call must begiven its common and ordinary meaning as associated with and understood in thefield of legislation to which it refers....The usual principles of interpretation areemployed in order to arrive at a reasonable construction of the call. The callshould be viewed as a whole and in context. A call to 'amend' the legislation upona particular topic was held to include the repeal of the same legislation."(footnotes omitted).

b. Requirement that the call specify the subject of legislation with particularity - 5.4 -"Since the governor can either restrict the scope of legislative action, or canextend it to many subjects, it should make no difference whether the language heuses describes the subjects by general or specific language. The constitutionalrestrictions were inserted for the purpose of giving notice to the public that certainsubjects would be placed before the legislature, so that the interested public couldbe present to discourage or support the contemplated legislation. It is extremelydoubtful whether a call including numerous specified items will come to theattention of the public as quickly as a general statement of the legislation needed."(footnotes omitted).

c. Finality of governor's control - 5.5 - "The governor is not a part of the law-makingbody, and therefore he will not be permitted to control the discretion of thelegislature in acting upon a particular subject. Thus, the legislative branch maydecide either favorably or unfavorably towards the demands of the proclamation.Likewise the governor cannot limit the amount of an appropriation. His call mayvalidly refer to a particular bill, but the legislature is limited only by the subjectintended to be covered and so the legislature may validly make amendments to it.While the governor is unable to force the legislature to act in a particular way hemay qualify a general subject, and thus control the scope of legislative action."(footnotes omitted).

d. Presumption of constitutionality - 5.7 - "Probably the most litigated problemarising under the constitutional restrictions upon legislation by extraordinarysession is that concerned with the requirement that the legislation "relate" to the"subject" designated in the call, or that the "business" of the legislature shall belimited to that specified in the proclamation. In determining whether thelegislative action conforms to the governor's call, the constitutional provisionsshould be strictly construed in favor of the legislative power, and a statute enactedduring an extraordinary session should be presumed to be constitutional."(footnotes omitted).

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e. Germane subject - 5.8 - "The statute must be reasonably germane to the subjectdescribed in the governor's call, but unless the statute covers a matter entirelyforeign to the purpose of the call it will be sustained. The exact determination ofwhat legislation is germane to a particular call will depend upon the application ofreasonable judgment in each separate instance where the issue is raised, keepingin mind that the purpose of placing constitutional limitations upon the enactmentsof a special session is to provide notice to the public of the nature of thelegislation to be considered. The test is whether the public was reasonably put onnotice that legislation of the sort enacted would be considered.

A further incidental consequence of these provisions is also to limit thefreedom of legislative activity so that the legislature's efforts will be concentratedupon those matters which the governor declares to be in need of immediateattention. However, the courts are not justified in applying the constitutionalrestrictions so narrowly as to limit the legislature's choice of ways to deal with asubject. To do so would enable the governor to dominate policy to such a degreethat the spirit of the principle of separation of powers would be violated."(footnotes omitted).

E. 73 Am Jur 2d §20 - "Statutes"- "Scope of legislation enacted at special sessions"

a. "In the absence of a constitutional provision limiting the power of the legislatureto pass laws at a special session, its legislative power, when convened in specialsession, is as broad as a regular session. However, constitutional provisions havebeen adopted in some jurisdictions which impose limitations upon the power ofthe legislature to enact laws when convened in special session. For example, someconstitutional provisions provided that business other than that set forth in thegovernor's call for the special legislative session cannot be transacted, or that nosubject may be acted upon at extraordinary legislative sessions convoked by thegovernor except such as the governor may recommend for consideration. Undersuch a provision, at a special session, the legislature may consider not only thelegislation specifically mentioned in the governor's call but such other legislationas may incidentally arise out of the call and any necessary detail in accomplishingthe purpose of the call. While a proclamation may suggest the means ofaccomplishing the business called for, it cannot prescribe or limit the manner inwhich the legislature may act, and the response to the recommendation isexclusively within the province of the legislature." (footnotes omitted).

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F. 82 C.J.S. Statutes §16 and §17 - "Scope of call or proclamation" - Excerpts (footnotesomitted)

a. "The call or proclamation may contain many or few subjects according to theGovernor's conception of the public need and, while the legislature must confineitself to matters submitted, where a general object is described the legislature is freeto determine in what manner this object will be carried into effect."

b. "Under constitutional provisions limiting legislation at special or extra sessions,the call or proclamation may contain many or few subjects according to theGovernor's conception of the public need. In the Governor's discretion, legislationmay be confined to the subjects specified. The Governor may limit theconsideration to a specified phase of a general subject, but cannot restrict thedetails springing from such a subject. The Governor's authority over thelegislature is limited to a recommendation, and suggestions with respect to thedisposition of the subject matter, but such suggestions are merely advisory. Thus,where a general object is described, the legislature is free to determine in whatmanner such object shall be carried into effect, since, while the legislature mustconfine itself to matters submitted, it need not follow the views of the Governor orlegislate in any particular way, but may act freely and legislate on all or any of thesubjects specified or on any part of a subject, provided a new subject unrelated tothose stated is not acted on."

c. "While the objects or subjects to be legislated on may be stated by the Governorbroadly or in general terms, a submission which does not state specifically thesubject matter on which legislation is desired grants no power to the legislativebody. Thus, the subject in the call or proclamation must be stated with someparticularity, sufficient to evoke intelligent and responsive action from thelegislature. On the other hand, the call or proclamation need not state the details ofthe legislation, which are beyond the control of the Governor except for the powerof veto."

d. "Legislation adopted at a special session must be germane to, or within, theGovernor's call or proclamation.

Legislation enacted by a special or extra session must be germane to, or within,the apparent scope of the objects or subjects which were designated as properfields for legislation. General rules applicable to the construction of statutes, orthe rules governing the construction of other written instruments, are applied tothe construction of the proclamation. Thus, the proclamation should be construedor considered in its entirety, including supplemental proclamations and specialmessages, and should be reasonably, or liberally, construed, although the words ofany portion of the act must be interpreted not only as commonly understood, but

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as applicable to the subject intended to be affected by the legislation. However,while a general subject may be stated through specification of a particular matter,this does not open the door for any legislation germane to the general subjectbeyond the scope of the specification, although where a general subject ismentioned, the doors are thrown open to legislation on that subject. Furthermore,legislation may be authorized by implication, as the legislature has impliedpowers to make legislation within a subject effective by enacting other legislation,that may necessarily or incidentally arise out of that call."

G. Mason's Manual of Legislative Procedure (2010 ed.) -

"Sec. 780. Calls for Special Sessions

1. A constitutional provision forbidding the enactment of laws at a special session,other than those specified in the proclamation by the governor, is mandatory.

2. In issuing a call for a special session of the legislature, the governor may confinelegislation to the subjects specified in the governor's proclamation.

3. The governor may limit the consideration of a special session to a special phase ofa general subject, but the governor cannot restrict the details springing from thatsubject.

4. While a legislature cannot go beyond the business specified in a call for an extrasession, yet within such limits, it can act freely, in whole or in part or not at all.

...

6. In determining whether a given act is germane to the subject stated in theproclamation, the entire proclamation should be considered and should bereasonably construed to bring the act within its meaning, if possible.

......

11. A statute passed at a special or extraordinary session of the legislature will be heldby the courts to be within the scope of the governor's call if it can be done sounder any reasonable construction." (pp. 551-553, footnotes omitted).

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H. Constitutional Amendments

a. La. Const. Art. XIII, §1(A) provides that a constitutional amendment may beproposed any extraordinary session of the legislature if it is within the objects ofthe call of the session and is introduced in the first five calendar days thereof.

b. Enabling legislation - Art. XIII, §3, provides that "Whenever the legislature shallsubmit amendments to this constitution, it may at the same session enact laws tocarry them into effect, to become operative when the proposed amendments havebeen ratified."

I. Resolutions

a. A concurrent resolution suspending a law must be included in the governor's"call" for that special session. Op. Atty. Gen. No. 94-394, Aug. 3, 1994.

b. A concurrent resolution creating a joint legislative investigative committee andinstructing the committee in course of its duties and actions was self-directing, forinternal concern of Legislature, and was not "legislation" which needed to beincluded in special session call to be effective. Joint Legislative Committee v.Fuselier, 174 So.2d 817 (La. App. 1 Cir. 1965).

J. Pre-session Advertising and Other Requirements

a. Preintroduction notice otherwise necessary for retirement, local or special lawsdoes not appear to be required for special session call items. Fruge v. Board ofTrustees of Louisiana State Employees' Retirement System, 6 So.3d 124 (La.2008); State v. Cusimano, 187 La. 269, 174 So. 352 (1937); Williams v. Guerre,182 La. 745, 162 So. 609 (1935); State ex. rel. Sewerage & Water Board of NewOrleans v. Michel, 127 La. 685, 53 So. 926 (1910). The call itself serves as the"notice".

b. Other constitutional requirements for legislation, including origination, elementsof a bill, germane amendments and necessary vote, are still applicable.

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K. Other provisions

a. La. Const. Art. III, §16(E) - "(E) Extraordinary Session. Except for expenses ofthe legislature, a bill appropriating money in an extraordinary session convenedafter final adjournment of the regular session in the last year of the term of officeof a governor shall require the favorable vote of three-fourths of the electedmembers of each house."

b. La. Const. Art. III, §19 - "§19. Effective Date of Laws Section 19. All laws enacted during a regular session of the legislature shall takeeffect on August first of the calendar year in which the regular session is held andall laws enacted during an extraordinary session of the legislature shall take effecton the sixtieth day after final adjournment of the extraordinary session in whichthey were enacted. All laws shall be published prior thereto in the official journalof the state as provided by law. However, any bill may specify an earlier or latereffective date."

c. La. R.S. 24:11 - petition and procedure for legislature to call itself into specialsession.

d. La. R.S. 39:56 - "C. Not later than sixty days after the final adjournment of anyspecial session the governor shall cause to be prepared an update of the statebudget required by this Section, which shall incorporate any revisions necessaryas to expenditures or means of financing of the state budget which resulted fromactions taken during such special session. The governor shall distribute copies ofthese revisions in accordance with the provisions of Subsection B of this Section."

e. La. Const. Art. VII, §10 and La. R.S. 39:75 - special sessions for avoidance ofprojected deficits.

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L. Brinkhaus , et al v. Senate of the State of Louisiana, et al., 655 So.2d 394 (La. App. 1 Cir.1995)

a. Due to separation of powers and adoption by Legislature of procedural rules,legislators cannot seek declaratory judgments from courts to overturn proceduralrulings of legislative officers. Courts lack subject matter jurisdiction, as Art. III,Sec. 7(A) of the La. Const. provides that each house of the legislature "shalldetermine its rules of procedure, not inconsistent with the provisions of thisconstitution."

b. Adopted rules, and Mason's Manual of Legislative Procedure, provide internalmeans of appealing adverse rulings, including situation where a presiding officeris reluctant or refuses to allow the introduction of legislation or referral thereof tocommittee.

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II. EVEN-YEAR REGULAR SESSIONS:

[See Bulletin at www.legis.la.gov for Specific Deadline Dates for Advertising, BillRequest and Prefiling of Legislation]

A. 2018 Regular Session - Convenes at noon on Monday, March 12, 2018. Finaladjournment no later than 6:00 p.m. on June 4, 2018.

Subject matter is General in nature; however, no measure levying or authorizing a newstate tax, increasing an existing state tax, or legislating with regard to state taxexemptions, exclusions, deductions, or credits shall be introduced or enacted.

(See legislative website, www.legis.la.gov, for additional information, including sessionbulletin, deadlines, bills, legislative history, and archived broadcasts of committee andfloor action.)

B. La. Const. Art. III, §2:

"§2. SessionsSection 2. (A) Annual Session. (1) The legislature shall meet annually in regular

session for a limited number of legislative days in the state capital. A legislative day is acalendar day on which either house is in session.

(2)(a) No member of the legislature may introduce more than five bills that werenot prefiled, except as provided in the joint rules of the legislature.

(b) Except as provided in Subsubparagraph (c) of this Subparagraph, any bill thatis to be prefiled for introduction in either house shall be prefiled no later than five o'clockin the evening of the tenth calendar day prior to the first day of a regular session.

(c) Any bill to effect any change in laws relating to any retirement system forpublic employees that is to be prefiled for introduction in either house shall be prefiled nolater than five o'clock in the evening of the forty-fifth calendar day prior to the first day ofa regular session.

(d) The legislature is authorized to provide by joint rule for the procedures forpassage of duplicate or companion instruments.

(3)(a) All regular sessions convening in even-numbered years shall be general innature and shall convene at noon on the second Monday in March. The legislature shallmeet in such a session for not more than sixty legislative days during a period ofeighty-five calendar days. No such session shall continue beyond six o'clock in theevening of the eighty-fifth calendar day after convening. No new matter intended to havethe effect of law shall be introduced or received by either house after six o'clock in theevening of the twenty-third calendar day. No matter intended to have the effect of law,except a measure proposing a suspension of law, shall be considered on third readingand final passage in either house after six o'clock in the evening of the fifty-seventh

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http://www.legis.la.gov,

legislative day or the eighty-second calendar day, whichever occurs first, except by afavorable record vote of two-thirds of the elected members of each house.

(b) No measure levying or authorizing a new tax by the state or by any statewidepolitical subdivision whose boundaries are coterminous with the state; increasing anexisting tax by the state or by any statewide political subdivision whose boundaries arecoterminous with the state; or legislating with regard to tax exemptions, exclusions,deductions or credits shall be introduced or enacted during a regular session held in aneven-numbered year.

(4)(a) All regular sessions convening in odd-numbered years shall convene atnoon on the second Monday in April. The legislature shall meet in such a session for notmore than forty-five legislative days in a period of sixty calendar days. No such sessionshall continue beyond six o'clock in the evening of the sixtieth calendar day afterconvening. No new matter intended to have the effect of law shall be introduced orreceived by either house after six o'clock in the evening of the tenth calendar day. Nomatter intended to have the effect of law, except a measure proposing a suspension oflaw, shall be considered on third reading and final passage in either house after sixo'clock in the evening of the forty-second legislative day or fifty-seventh calendar day,whichever occurs first, except by a favorable record vote of two-thirds of the electedmembers of each house.

(b) During any session convening in an odd-numbered year, no matter intended tohave the effect of law, including any suspension of law, shall be introduced or consideredunless its object is to enact the General Appropriation Bill; enact the comprehensivecapital budget; make an appropriation; levy or authorize a new tax; increase an existingtax; levy, authorize, increase, decrease, or repeal a fee; dedicate revenue; legislate withregard to tax exemptions, exclusions, deductions, reductions, repeals, or credits; orlegislate with regard to the issuance of bonds. In addition, a matter intended to have theeffect of law, including a measure proposing a suspension of law, which is not within thesubject matter restrictions provided in this Subparagraph may be considered at any suchsession if:

(i) It is prefiled no later than the deadline provided in Subparagraph (2) of thisParagraph, provided that the member shall not prefile more than five such matterspursuant to this Subsubparagraph; or

(ii) Its object is to enact a local or special law which is required to be and has beenadvertised in accordance with Section 13 of this Article and which is not prohibited bythe provisions of Section 12 of this Article.

(B) Extraordinary Session. The legislature may be convened at other times by thegovernor and shall be convened by the presiding officers of both houses upon writtenpetition of a majority of the elected members of each house. The form of the petition shallbe provided by law. At least seven calendar days prior to convening the legislature inextraordinary session, the governor or the presiding officers, as the case may be, shallissue a proclamation stating the objects of the extraordinary session, the date on which itshall convene, and the number of days for which it is convened. The power to legislateshall be limited, under penalty of nullity, to the objects specifically enumerated in the

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proclamation. The session shall be limited to the number of days stated therein, whichshall not exceed thirty calendar days.

(C) Emergency Session. The governor may convene the legislature inextraordinary session without prior notice or proclamation in the event of publicemergency caused by epidemic, enemy attack, or public catastrophe.

(D) Organizational Session. The legislature shall meet in an organizational sessionin the state capitol to be convened at ten o'clock in the morning on the day the membersare required to take office. No such session shall exceed three legislative days. Thesession shall be for the primary purpose of judging the qualifications and elections of themembers, taking the oath of office, organizing the two houses, and selecting officers. Nomatter intended to have the effect of law shall be introduced at an organizational session."

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III. SELECTED NEW LEGISLATION:

A. Proposed Constitutional Amendments for October 14th Election:

(1) APPROVED - Act 427 of 2017 Regular Session - "Do you support an amendment toauthorize an exemption from ad valorem property tax for the total assessed value of thehomestead of an unmarried surviving spouse of a person who died while performing theirduties as an emergency medical responder or technician, paramedic, volunteer firefighter,or a law enforcement or fire protection officer?" (amends Article VII, Section 21(M)(1))

(2) APPROVED - Act 428 of 2017 Regular Session - "Do you support an amendment toexempt from property taxes materials and other property delivered to a construction siteto be made part of a building or other construction?" (adds Article VII, Section 21(N))

(3) APPROVED - Act 429 of the 2017 Regular Session - "Do you support an amendmentthat would dedicate any new tax levied on gasoline, diesel, and special fuels into theConstruction Subfund, which solely shall be used for project delivery, construction, andmaintenance of transportation and capital transit infrastructure projects and not forfunding for the payment of employee wages and related benefits or employee retirementbenefits? (amends Article VII, Section 27(B))

B. Selected New Acts:

(1) Procedures for revenue and fiscal matters -brief overview:

See La. R.S. 24:511 et seq. regarding the requirements and duties of the legislativeauditor. In 2017, La. R.S. 39:72.1 was amended and La. R.S. 38:2211 enacted to requirethat certain recipients of appropriations be in compliance with audit requirements in orderto let contracts.

In 2017, La. R.S. 39:371 and 372 were amended and La. R.S. 49:320.2 enacted toestablish a procedure for the classification of state funds, for agency accounts in the statetreasury and deposit to and withdrawal from escrow funds, and for duties of the CashManagement Review Board and Joint Legislative Committee on the Budget. Additionallegislation amended La. R.S. 49:308.5 and enacted La. R.S. 24:653 to provide for reviewof special treasury funds and for a dedicated fund review subcommittee of the JointLegislative Committee on the Budget. Further legislation amended La. R.S. 30:100.21 toprovide for deposits into the Overcollections Fund. Also, House Concurrent ResolutionNo. 1 and Senate Concurrent Resolution No. 2 of the 2017 First ExtraordinarySession provided relative to allocations of monies deposited into the state treasury forthe purpose of paying debt service on obligations secured by the full faith and credit ofthe state, and for transfer of funds from the Budget Stabilization Fund to the state generalfund to eliminate deficit pursuant to La. Const. Art. VII, §10.3 and La. R.S. 39:94.

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(See also, La. Atty. Gen. Op. No. 16 016, discussing the constitutional and statutoryauthority of the state treasurer to perform "interfund borrowing", i.e., temporarily borrowcash from special funds created or governed by the constitution in order to fundexpenditures from the general fund at times when the general fund is low on cash.)

In 2017, La. R.S. 39:2, 24.1, 34, 51 and 56 were revised to redefine "incentiveexpenditures" and "incentive expenditure programs", and to provide requirementsconcerning forecast, agency duties, and inclusion in the executive budget and inappropriation bills. Additional legislation also revised La. R.S. 39:2, 29, and 32 toprovide for the production of a nondiscretionary adjusted standstill budget in theexecutive budget, and for the development of evidence-based budgeting practices.

(2) Indemnification of district attorney - Act 414 of 2017 Regular Session:

Amends La. R.S. 42:1441 to provide that the state shall indemnify a district attorneyagainst a federal court claim based on "allegations of the constitutional validity of astatute when the district attorney or his office has taken no action to institute prosecutionby filing a bill of information or an indictment." The attorney general may exercise hisdiscretion to defend the district attorney and may also enter into a consent judgmentsubject to certain requirements. Payment of a judgment is by legislative appropriation andshall not be made unless approved by a majority of members of a subcommittee of theJoint Legislative Committee on the Budget. While the payment amount and otherinformation is a public record, the statute further provides that "the subcommittee maymeet in executive session to consider such agreements."

(3) Ethics:

(a) Act 30 of 2017 Regular Session, eff. June 3:

Adds La. R.S. 42:1111.1 - "Charitable giving to public servants duringgubernatorially declared disasters and emergencies; limitations; requirements;annual reports

A. Notwithstanding any contrary provision of this Part, during the timeperiod extending from the date of a gubernatorially declared disaster or emergencyand ending on the date five years after the date the gubernatorially declareddisaster or emergency was initially declared by the governor, a public servant mayreceive any thing of economic value as a contribution or donation from anot-for-profit organization or a fund within a not-for-profit organization for thepurpose of disaster aid or relief to offset any economic losses suffered by thepublic servant as a result of the gubernatorially declared disaster or emergency,provided that the total value of contributions or donations received by the publicservant related to the gubernatorially declared disaster or emergency from

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not-for-profit organizations or funds within not-for-profit organizations shall notexceed twenty-five thousand dollars.

B. Each not-for-profit organization which disburses, either directly orthrough a fund, a contribution or donation to a public servant that, except for theprovisions of Subsection A of this Section, would otherwise be prohibited by thisPart shall utilize objective criteria in both evaluating the need for and thedisbursement of contributions or donations to public servants to ensure that fairand equitable disbursements are made and that the disbursements are based upondemonstrated and documented needs directly related to the gubernatoriallydeclared disaster or emergency.

C. Not later than February fifteenth of each year following a year that anot-for-profit organization has given, either directly or through a fund, acontribution or donation to a public servant that, except for the provisions ofSubsection A of this Section, would otherwise be prohibited by this Part, thenot-for-profit organization shall file a report with the Board of Ethics containingthe identification of the gubernatorially declared disaster associated with thecontribution or donation, the objective criteria utilized as required by SubsectionB of this Section, the name of each public servant to whom a contribution ordonation was given, the name of the agency of each such public servant, thenature of the donation or contribution given to each such public servant, and thevalue of the donation or contribution given to each such public servant."

(Similar language in La. R.S. 42:1123(36) that had expired relating to HurricanesKatrina and Rita was repealed.)

(b) Act 388 of 2017 Regular Session, eff. June 23:

Adds La. R.S. 42:1111(A)(6) to provide that an award or stipend provided to apublic school teacher or administrator for his participation in the National Mathand Science Initiative shall be deemed compensation from his governmental entityto which he is duly entitled, but is not "regular compensation" and forms no basisfor governmentally supported benefits.

(4) House Standing Committee Jurisdiction - House Resolution 1 of the 2017 FirstExtraordinary Session

Amends House Rule 6.6 concerning standing committee jurisdiction to provide drinkingwater standards are under Health and Welfare and laws regulating water resources areunder Natural Resources and Environment.

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IV. SELECTED RECENT CASES:

A. Suspensive Resolution Upheld. Louisiana Chemical Association v. State throughLouisiana Department of Revenue, 217 So.3d 455 (La. App. 1 Cir. 2017), writdenied,___So.3d___(La. 2017) - affirmed the constitutionality of a suspensive resolutionadopted by the legislature suspending certain state sales tax exemptions. The adoption bythe legislature of the suspensive resolution did not constitute the imposition of a tax or arepeal of law and so was not subject to a two-thirds vote requirement. The suspensiveresolution was not a revenue raising measure nor was it unconstitutionally vague andambiguous. The Court stated in part:

"The plaintiffs' argument that HCR 8 must comply with the requirementsapplicable to levying of a tax or repeal of a tax exemption, that is, two thirds voteunder La. Const. art. VII, §2, stems from a conclusion that a suspension of a taxexemption is the same as a repeal of a tax exemption. Suspension is the act oftemporarily delaying, interrupting, or terminating something. Black's LawDictionary (10th ed. 2014). Repeal is the abrogation of an existing law by expresslegislative act. Black's Law Dictionary (10th ed. 2014). Also, we note that taxexemptions themselves are not listed in La. Const. art. VII, § 2, and it is a taxexemption that is being suspended.

The repeal of a law may be accomplished only by the Legislature passing a billand the bill becoming law, after presentment to the Governor. This effects apermanent change in our law. La. Const. arts. III, '' 15(A) and 17. The suspensiveresolution found in HCR 8 does not resolve to enact, amend, or repeal any law.HCR 8 does not contain an enacting clause as otherwise required by ourconstitution for the enactment of law. La. Const. art. III, §14. The resolution is nota bill, which is the required vehicle for enactment of a law. La. Const. art. III, §15.4.

In BP Oil Co. v. Plaquemines Parish Gov't, 93 1109 (La. 9/6/94), 651 So.2d 1322,the trial court recognized that the Legislature provided at various times forsuspensions of some of the exemptions provided for in La. R.S. 47:305D ofcertain personal property from sale and use taxes, and provided that theexemptions were applicable to both state and local taxes. The trial court in thatcase, reasoning that the suspension of an exemption has the same effect asrepealing the exemption during the relevant period, concluded that suspensions ofexemptions must also be equally applied to local governments, school boards, andthe state. However, the Louisiana Supreme Court found "that we need not decidein this case the meaning or the scope of any uniformity requirement forexemptions or exclusions in [La. Const. art. VI, §29(D), because the present caseinvolves only the suspension of a law enacted by the Legislature." BP Oil Co., 651So.2d at 1337 (per curiam) (on rehearing).

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The language of La. Const. Art. VII, §2 does not provide that the suspension of anexemption of an existing tax shall require the enactment of a law by two thirds ofthe elected members of each house of the legislature. A repeal of an existing taxwould be a permanent change. A suspension (which is time limited) of anexemption is not the same thing as a permanent repeal.

Suspensive resolutions are special concurrent resolutions authorized by La. Const.Article III, §20 of the constitution to be given the force and effect of law.Suspensive resolutions suspend the operation of all or part of an existing law for aspecified period of time. The suspension is temporary and does not result in arepeal or amendment of the law. A suspensive resolution cannot be used tosuspend provisions of the constitution. 20 La. Civ. L. Treatise, Legis. Law & Proc.§2:2 Legislative instruments (2016 ed.)

The plaintiffs also assert that HCR 8 is revenue raising legislation and thatpursuant to La. Const. art. III, §16, all bills for revenue raising must originate inthe house. However, as we have previously stated, HCR 8 is not a bill. Plaintiffscite Louisiana Federation of Teachers v. State, 2013 0120 (La. 5/7/13), 118 So.3d1033, in support of their argument. In that case, the Louisiana Supreme Courtconsidered a constitutional challenge to a Senate Concurrent Resolution thatallegedly failed to comply with constitutional procedural limitations upon theLegislature, and found that it was necessary to examine both the form and thesubstance of the legislative measures at issue. In that case, the Senate ConcurrentResolution was found to be unconstitutional, as it was a new matter, intended tohave the effect of law. The plaintiffs maintain that, like the Senate ConcurrentResolution in Louisiana Federation of Teachers, HCR 8 is also in substance a billto raise revenue.

However, we find that the plaintiffs are essentially just repeating their sameargument that additional procedures and formalities should be required for theadoption of regulations suspending tax exemptions. In Harrah's Bossier CityInvestment Co., LLC v. Bridges, 2009 1916 (La. 5/11/10), 41 So.3d 438, 446, theLouisiana Supreme Court noted that:

[A] "tax exemption is a provision that exempts from tax a transaction thatwould, in the absence of the exemption, otherwise be subject to tax. Thatis, there has been a statutory decision not to tax a certain transaction that isclearly within the ambit and authority of the taxing statute." Bruce J.Oreck, Louisiana Sales & Use Taxation, (2d ed.1996), ' 3.1. An exclusion,on the other hand, "relates to a transaction that is not taxable because itfalls outside the scope of the statute giving rise to the tax, ab initio."... Id.

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The levy of the initial tax, preceding the decision to grant an exemption, is themanner in which the Legislature raises revenue. Since the tax levy raises therevenues and since the granting of the exemption does not change the underlyingtax levy, we find that suspending an exemption is not a revenue raising measure."(pages 460-463, footnotes omitted).

B. Executive Order Invalid as Attempted Exercise of Lawmaking Function Reserved toLegislature. Louisiana Dept. of Justice and Jeff Landry v. Edwards, No. 2017-CA-0173(La. App. 1 Cir. 11/1/17), writ status unknown as of this writing - Governor issued Executive Order No. JBE 2016-11 requiring all state contracts for the purchase ofservices to include a provision that the contractor shall not discriminate on the basis of"race, color, religion, sex, sexual orientation, gender identity, national origin, politicalaffiliation, disability, or age" of the persons seeking such contracts or in any matterrelating to employment. EO further directed all "state agencies, departments, offices,commissions, boards, entities, or officers of the State of Louisiana, or any politicalsubdivision ... to cooperate with the implementation" of its provisions. AG opined theExecutive Order was invalid as a violation of separation of powers and refused to approvestate agency requests for the appointment of private legal counsel if the proposed statecontracts included the term "gender identity" in the anti-discrimination provision. AGthereafter filed suit seeking declaratory judgment and injunction. Trial court agreed withAG and issued injunction and judgment that EO invalid. Governor appealed.

First Circuit agreed with AG on main issue and pretermitted discussion of otherissues.

First Circuit stated in part:

"The main issues in the appeal and answer to appeal concern the validity of theExecutive Order, as well as the extent of the Governor's and the AttorneyGeneral's respective authority. Such questions of law are reviewed de novo, asthey involve statutory interpretation. See Thibodeaux v. Donnell, 2008-2436 (La.5/5/09), 9 So.3d 120, 122-23; Crowe v. Bio-Medical Application of Louisiana,LLC, 2014-0917 (La. App. 1st Cir. 6/3/16), 208 So.3d 473, 483, writ denied,2017-0502 (La. 5/12/17), 219 So.3d 1106. The Governor maintains that theExecutive Order is merely an important anti-discrimination policy statementrelated to state contracts and employment services within the executive branch ofgovernment, and that nothing prohibits the Governor from establishing policythrough an Executive Order that does not conflict with existing law. The AttorneyGeneral and intervenors contend that the Governor acted outside of his lawfulpowers in issuing the Executive Order, which unconstitutionally usurped theconstitutionally granted power of the Legislature.

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The Louisiana Constitution divides the powers of government into threeseparate branches: legislative, executive, and judicial. La. Const. art. II, § 1. Ourconstitution further provides that no branch may exercise power belonging toanother. La. Const. art. II, § 2. The legislative power of the state rests exclusivelyin the Legislature. La. Const. art. II, § 1; La. Const. art. III, § 1; Hill v. Jindal,2014-1757 (La. App. 1st Cir. 6/17/15), 175 So.3d 988, 1006, writ denied,2015-1394 (La. 10/23/15), 179 So.3d 600. The Governor has constitutionalauthority, as chief executive officer of the state, to see that all laws of the state andthe United States are faithfully executed, and nothing prohibits the Governor fromestablishing policy through Executive Orders. See La. Const. art. IV, § 5(A); La.R.S. 49:215(A). However, the limited power of the Governor to issue ExecutiveOrders does not inherently constitute authority to exercise the legislativelawmaking function. See Louisiana Hospital Ass'n v. State, 2013-0579 (La. App.1st Cir. 12/30/14), 168 So.3d 676, 687, writ denied, 2015-0215 (La. 5/1/15), 169So.3d 372. See also P. Lamonica & J. Jones, 20 La. Civ. L. Treatise, Legis. Law& Proc. § 8:1, n. 2 (2016).

The Governor's Executive Order in this case goes beyond a mere policy

statement or a directive to fulfill law, because there is no current state or federallaw specifically outlining anti-discrimination laws concerning and/or definingsexual orientation or gender identity. The current laws simply prohibitdiscrimination based on a person's biological sex.5 Louisiana Constitution ArticleI, Section 3, provides that no person shall be denied the equal protection of thelaws and that no law shall "arbitrarily, capriciously, or unreasonably discriminateagainst a person because of birth, age, sex, culture, physical condition, or politicalideas or affiliations." Similarly, Louisiana law concerning intentionaldiscrimination in employment declares it unlawful for an employer to engage indiscrimination because of a person's "race, color, religion, sex, or national origin."See La. R.S. 23:332. Clearly, the Louisiana Legislature and the people of theState of Louisiana have not yet revised the laws and/or the state Constitution tospecifically add "sexual orientation" or "gender identity" to the list of protectedpersons relating to discrimination. Further, there is no binding federal law orjurisprudence banning discrimination on the basis of sexual orientation or genderidentity. Thus, we agree with the district court that the Governor's ExecutiveOrder constituted an unconstitutional interference with the authority vested solelyin the legislative branch of our state government by expanding the protectionsthat currently exist in anti-discrimination laws rather than directing the faithfulexecution of the existing anti-discrimination laws of this state.

Having found the Governor's Executive Order invalid, we conclude that

the district court did not err in permanently enjoining the mandatory adoption andimplementation of the Executive Order. The remainder of the Governor's and theAttorney General's assignments of error are mooted by our affirmation of the

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district court's ruling concerning the Executive Order, because the evidencereveals that the Attorney General's actions in approving or disapproving statecontracts concerning the employment of private legal counsel revolvedexclusively around the inclusion of the disputed anti-discrimination language.Once the controversial language is removed and not an issue, we find no evidencethat a justiciable controversy remains." (emphasis added, footnotes omitted,p._____)

C. Title of Act Valid - T D X Energy, L.L.C. v. Chesapeake Operating, Incorporated, 857

F.3d 253 (5th Cir. 2017)- federal Fifth Circuit upheld the validity of an act title, stating inpart:

"Chesapeake alleges that even if sections 103.1 and 103.2 provide a remedy forlessees, applying them in that way would violate Article III of the Louisianaconstitution. That Article dictates that "[e]very bill ... shall be confined to oneobject" and "contain a brief title indicative of its object." LA. CONST. art. III §15(A). The purpose of this requirement is to "give the legislature and the publicfair notice of the scope of the legislation" and "defeat deceitful practices ofmisleading the legislature into the passage of provisions not indicated by the titleof the bill." Bazley v. Tortorich, 397 So.2d 475, 485 (La. 1981). According toChesapeake, the brief title of the act enacting sections 103.1 and 103.2 did notindicate its object if it applied to lessees, because it referred only to "reportingrequirements of operators and producers to owners of unleased mineralinterests."13 Act No. 973, 2001 La. Leg.; see also Bazley, 397 So.2d at 485(noting that an act's title is the brief description beginning with "[t]o amend andreenact").

But the title of Act 973 provided sufficient notice of its object. Regardless of themeaning of the phrase "unleased mineral interests," the legislature used itthroughout the Act. The title of an act "is not to be strictly construed, but ratherliberally construed to effectuate the legislative purpose of the statute." Doherty v.Calcasieu Par. Sch. Bd., 634 So.2d 1172, 1174B75 (La. 1994) (reversing the trialcourt's holding that, because the title of an act "use[d] the permissive term>authorize,' and the body of the act use[d] the mandatory term >shall', the titleviolate[d] the title body clause"); Bazley, 397 So.2d at 486 (specifying that a titleneed not "be an index to the contents of the act"; it is sufficient that "the object befairly stated, although it be expressed in general terms").

Chesapeake identified three cases in which the Supreme Court of Louisiana foundtitles misleading. One title did not give fair notice when it said the act providedquarters for a parish court, without indicating that it also authorized the parish tocharge tax levying bodies, including school boards, for the costs of collecting anytaxes they levied. Orleans Parish Sch. Bd. v. City of New Orleans, 410 So.2d

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1038, 1039 (La. 1982). Another gave no "notice that substantial funds were to betransferred annually" from one district to another, an "extraordinary legislativesubject." Terrebonne Parish Police Jury v. Bd. of Comm'rs, 306 So.2d 707, 709(La. 1975). The third said nothing about the fact that an act authorized theestablishment of an institution for juvenile offenders in New Orleans. JeffersonParish v. Louisiana Dep't of Corr., 259 La. 1063, 254 So.2d 582, 597 (1971). Thetitles in these decades old cases omitted that the acts they described addressedmatters generally subject to intense public scrutiny: public money and the locationof a penal institution. This small number of cases finding titles misleading, andtheir subject matter, shows they are the exception and not the rule. Given theliberal construction courts must give titles, a title which gave notice that an actdealt with operators' reporting requirements cannot fail because it did not specifyevery party to whom they must report." (pages 264-265, footnotes omitted).

D. Writ of Mandamus Not Prohibited - Jazz Casino Company, L.L.C. v. Bridges, 223So.3d 488 (La. 2017) - writ of mandamus ordering the Secretary of Revenue to usecurrent collections of hotel occupancy taxes in order to refund a taxpayer overpaymentdid not violate the constitutional prohibition of seizing public funds. Court distinguishedthe payment of such refunds as a ministerial and nondiscretionary duty under statutoryprovisions, stating in part "However, the mandatory nature of the overpayment refund,like the compensation that is required in expropriation cases, distinguishes anoverpayment refund proceeding under La. R.S. 47:1621, et seq., from cases requiring alegislative appropriation for payment of a judgment, i.e., matters arising out of contract ortort." (page 496, footnotes omitted).

E. Legislative Immunity:

(1) Jefferson Community Health Care Centers, Incorporated v. Jefferson ParishGovernment, 849 F.3d 615 (5th Cir. 2017), with the federal Fifth Circuit pointingout that local governing bodies and council members in their official capacity donot enjoy immunity from suit under §1983, and that as to the parish councilmembers' claim for legislative privilege:

"we note that this is an evidentiary privilege, 'governed by federal commonlaw, as applied through Rule 501 of the Federal Rules of Evidence.' Perezv. Perry, No. SA 11 CV 360 OLG JES, 2014 WL 106927, at *1 (W.D.Tex. Jan. 8, 2014) (citing Rodriguez v. Pataki, 280 F.Supp.2d 89, 93B94(S.D.N.Y.2003)). 'While the common law legislative immunity for statelegislators is absolute, the legislative privilege for state lawmakers is, atbest, one which is qualified.' Id. at *2 (citation and internal quotationmarks omitted). This privilege 'must be strictly construed and acceptedonly to the very limited extent that permitting a refusal to testify orexcluding relevant evidence has a public good transcending the normally

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predominant principle of utilizing all rational means for ascertaining thetruth.' Id. at *1 (internal quotation marks omitted). At any rate, evenassuming that the councilmembers' reasons for passing the resolutions areprivileged in the sense that they cannot be directly compelled to disclosethem, this evidentiary privilege cannot bar the adjudication of a claim."(page 624).

(2) Buisson Creative Strategies, LLC v. Roberts, 2017 WL 367649 (E.D. La. 2017) -in this matter the Court had previously ruled that §1983 claims asserted againstthe defendant in his official capacity as a parish council member survivedsummary judgment. However, claims asserted against the defendant in hisindividual capacity were dismissed on the basis of legislative immunity, with theCourt stating:

"In this Motion, Defendant Christopher Roberts asks the Court todismiss Plaintiffs' claims asserted against him in his personal capacity,arguing that he is shielded from liability by the doctrine of legislativeimmunity. Plaintiff responds, arguing that Roberts's actions were notlegislative in nature.

Absolute legislative immunity protects an individual from suit inhis personal capacity for actions that are legislative in nature. Thisimmunity has been extended to include local legislators and otherindividuals acting in legislative capacities. “Absolute immunity applies toactivities, not offices .... Legislative immunity protects officials fulfillinglegislative functions even if they are not ‘legislators.’ And absoluteimmunity only protects those duties that are functionally legislative, not allactivities engaged in by a legislator.

Though the Fifth Circuit has declined to adopt a definitive test todetermine if an action is legislative, it has considered the tests from othercircuits in determining the nature of an official's action. Relevantconsiderations include whether the decision made involves formulation ofa policy or ad hoc decision-making, whether the decision involvesprospective, legislative-type rules or executive-type enforcement, andwhether the facts underlying the decision are legislative facts (such asgeneralizations concerning a policy or the state of affairs) or facts thatrelate to particular individuals or situations (making the decisionadministrative).

The Court finds the Supreme Court case of Bogan v. Scott-Harristo be particularly applicable to this matter. There, a former city employeesued local legislators in their individual capacity for their actions inenacting an ordinance eliminating her position, alleging that the ordinancewas enacted in retribution for exercise of her First Amendment rights. TheCourt found the defendant-legislators actions to be protected by legislative

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immunity, specifically noting that any inquiry into their individualmotivations was inappropriate. The Court held that “[w]hether an act islegislative turns on the nature of the act, rather than on the motive or intentof the official performing it.”

In this matter, the Court finds that Christopher Roberts is entitledto legislative immunity. Just as in Bogan, the actions at issue bear “all thehallmarks of traditional legislation.” Roberts's actions, in proposing andvoting on the Ordinance, were quintessentially legislative in nature.Furthermore, the Ordinance involves enacting regulations applicable to allParish contracts, implicating interests beyond just those of Plaintiffs.Though Plaintiff argues that his purpose in proposing this legislature wasretaliatory, the Court cannot properly inquire into to motivations of anindividual legislator. Accordingly, Roberts is entitled to immunity fromsuit in his individual capacity." (pp.___)

(3) Hooker v. Campbell, 2016 WL 6892924 (W.D. La. 2016), report andrecommendation adopted by Hooker v. Campbell, 2016 WL 6892498, (W. D. La.,Nov. 22, 2016) - In reviewing motions for partial dismissal in civil rights actionagainst the Franklin Parish Police Jury, its members, and an engineer associatedwith the parish, Court stated in part:

"The police jurors challenge the individual capacity claims againstthem on the grounds that (1) the allegations are insufficient to state a claimon which relief may be granted and (2) the jurors are entitled to legislativeimmunity................................... To state a Section 1983 claim, “a plaintiffmust (1) allege a violation of a right secured by the Constitution or laws ofthe United States and (2) demonstrate that the alleged deprivation wascommitted by a person acting under color of state law.” Moore v. WillisIndep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). A plaintiff mustestablish that the defendant was either personally involved in thedeprivation or that his wrongful actions were causally connected to thedeprivation. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443(5th Cir. 1999). A supervisor is not personally liable for a subordinate'sactions in which he had no involvement. James v. Texas Collin County,535 F.3d 365 (5th Cir. 2008).........................The jurors argue that theseallegations do not describe any kind of personal involvement that couldmake any of them personally liable for a constitutional violation. Plaintiffsrespond that allegations of personal involvement are only one theory thatcan be used to establish causation under Section 1983. They point to thepossibility of asserting a claim against a supervisor whose policies orfailures to train subordinates are a moving force behind a violationcommitted by a subordinate. Plaintiffs do not, however, point to any factsthat would give rise to a plausible claim for relief under that theory. The

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only facts they point to are their allegations that Plaintiffs attendedmeetings at which the police jurors were present, from which theyconclude that the jurors' actions/failure-to-act manifested a callousindifference to the Plaintiffs' rights to services equal to those afforded totheir neighbors.

The scant facts pointed to by Plaintiffs are simply not enough tostate a claim that any individual police juror is personally liable for aconstitutional violation. Plaintiffs do not identify any particular action, oreven a vote, by any particular juror(s) that they assert violated aconstitutional right. Mere service as a member of the legislative body withwhich Plaintiffs are dissatisfied is not sufficient to impose personalliability on a juror.

This leads to the related defense of legislative immunity, which thejurors have invoked. It provides an absolute immunity for localgovernment officials based on actions they take when fulfilling theirlegislative functions. Hughes v. Tarrant County, 948 F.2d 918 (5th Cir.1991); Calhoun v. St. Bernard Parish, 937 F.2d 172 (5th Cir. 1991);Deshotels v. Village of Pine Prairie, 2012 WL 1712358 (W.D. La. 2012).

Plaintiffs argue that legislative immunity is inapplicable becausethe acts at issue are more administrative rather than legislative. But jurorswould be entitled to qualified immunity even for non-legislative acts.Hughes, 948 F.2d at 920. Frankly, the scant facts provided in thecomplaint directed at the individual jurors, or explaining how the decisionshave been made regarding water service in the area, do not allow adetermination of whether the jurors are accused of actions that would fitwithin absolute legislative immunity or merely qualified administrativeimmunity. In either event, there are insufficient facts set forth in thecomplaint to overcome those immunity hurdles and allow the impositionof personal liability against any individual juror for violating Plaintiff'sconstitutional rights." (pp.____)(emphasis added)

F. Retroactivity:

(1) Jones v. Sewerage and Water Board of New Orleans, 213 So.3d 497 (La. App. 4Cir. 2017) - Fourth Circuit Court of Appeal concludes as a matter of firstimpression that the service of process provisions of La. R.S. 13:5107(D) could notbe applied retroactively to a lawsuit filed prior to an entity being designated as apolitical subdivision, since to do so would divest the plaintiff of their right to sueon a cause of action.

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(2) "Procedural and Interpretative" language in retroactivity section of act:

(a) Security Plan Fire Insurance Company v. Donelon, 220 So.3d 769 (La.App. 1 Cir. 2017) - Issue was whether Board of Tax Appeals had subjectmatter jurisdiction to hear petition. Court said in part:

"Relevant to our analysis herein are the amendments under La.Acts 2016, No. 335 to Chapter 17 by the legislature in 2016, whichthe legislature has expressly directed to be applied retroactively. Asdemonstrated below, amendments to Chapter 17 evidence a clearintent by the legislature to clarify the subject matter jurisdiction ofthe BTA.............................Louisiana Revised Statutes 47:1431 wasamended by La. Acts 2016, No. 335, and the phrase "the statecollector" was changed to "a state collector." Importantly, Section 3of 2016 La. Acts, No. 335 states that "[t]he provisions of this Actamending La. R.S...1431 ...[are] procedural and interpretative andshall be effective on the effective date of Acts No. 640 of the 2014Regular Session of the Legislature." The effective date of 2014 La.Acts, No. 640 was June 12, 2014. Thus, retroactivity of the 2016amendments to La. R.S. 47:1431 indicate the legislature's intent torecognize that the BTA's jurisdiction includes not just claims foroverpayment, refund, and payment under protest brought againstthe "the collector" (i.e. the secretary of the Department ofRevenue), but, that the BTA's jurisdiction also includes other "statecollectors." (pages 774 and 775).

(b) Thomas v. A. Wilbert & Sons, LLC, 217 So.3d 368 (La. App. 1 Cir. 2017)- "The Groundwater Act, by contrast, does not contain a citizen-suit

provision; thus, Dow argues, the shifting of fees to the responsibleparty is a tool to penalize and deter. Dow asserts the attorney feesprovision in the Groundwater Act is unconstitutional as applied toDow because it punishes Dow for alleged conduct that occurredbefore the statute was enacted.

Louisiana Civil Code Article 6 provides, "In the absence of

contrary legislative expression, substantive laws applyprospectively only. Procedural and interpretative laws apply bothprospectively and retroactively, unless there is a legislativeexpression to the contrary." In La. R.S. 1:2, the Louisianalegislature has also indicated that "[n]o Section of the RevisedStatutes is retroactive unless it is expressly so stated." The

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Louisiana Supreme Court has interpreted the retroactivityprovisions of La. C.C. Art. 6 and La. R.S. 1:2 to require a twofoldinquiry. First, the court ascertains whether the legislature expressedits intent regarding retrospective or prospective application. If thelegislature did so, the inquiry is at an end. If the legislature did not,the court must classify the enactment as substantive, procedural, orinterpretive. Notwithstanding this analysis, even where thelegislature has expressed its intent to give a law retroactive effect,that law must stay within constitutional confines.

The Groundwater Act was enacted by 2003 La. Acts 1166.

Section 2 of Act 1166 provides, in pertinent part, "It is the expressintent of the legislature that this Act shall be interpretative,remedial, and procedural and shall be applied both prospectivelyand retroactively only to cases initially filed after August 1, 1993...." In light of this clear expression of legislative intent, the firststep of our inquiry is dispositive and no further inquiry on theissue of retroactive application is necessary. We must now addressthe constitutional issue that Dow argues such retroactiveapplication presents. Dow asserts the award of attorney fees underthe Groundwater Act violates the ex post facto clauses of theUnited States and Louisiana Constitutions. Article I, §§ 9 and 10,of the United States Constitution and Article I, § 23, of theLouisiana Constitution prohibit retroactive application of penallegislation."

(c) Comment #1: Language in an act declaring such act to be "procedural andinterpretative" is invalid under separation of powers. The legislaturecannot make such a "declaration" binding upon the judicial branch nor canthe judicial branch accept it. Interpretation of law is the sole province ofthe judiciary. This includes determinations of an act's status as"substantive", "procedural" or "interpretative" for the purposes ofretroactive application. Although the Legislature is to free to express (ornot express) an intent for retroactive application, the Court must make itsown determination as to whether an act can in fact validly be retroactivelyapplied. See, e.g., C.C. Art. 6; R.S. 1:2; Unwired Telecom Corp. v. Parishof Calcasieu, 903 So.2d 392 (La. 2005); Mallard Bay Drilling v. Kennedy,914 So.2d 533 (La. 2005); R&B Falcon Drilling USA v. Lafourche ParishSchool Bd ex rel. Percle, 950 So.2d 696 (La. App. 1 Cir. 2006); 2014Recent Developments materials and discussion by this author concerningretroactivity; and Hall, A Wolf in Sheep's Clothing: Dressing-UpSubstantive Legislation to Trigger the Interpretive Exception to

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Retroactivity Violates Constitutional Principles, 67 La. L. Rev. 599(2007).

(d) Comment#2 - Concerning effective dates, note in Security Plan above thelanguage in Section 3 of the act at issue that purports to make a 2016 act"effective" in 2014. Can an act really be "effective" before it was enacted,since the purpose of the effective date is to specify the time at which an actof the legislature thereafter becomes a law in force? If such statement isactually at best an indication of intent for retroactive application, thenwhen does the act actually become "effective" as law? Upon signature ofthe governor, August 1, or some other date? See La. Const. Art. III, §19and the Comments to C.C. Art. 5. It should also be noted that Act 335 of2016 additionally contained a Section 5 providing for "this Act" to becomeeffective upon signature by the governor, and the legislative website showsthe effective date of the Act as June 5, 2016.

(3) Woodard v. Woodard Villa, Inc., 2017 WL 2177898 (M.D. La. 2017) - Issue waswhether a statute that was part of the 2015 Business Corporation Act could begiven retroactive application. Court concluded no and stated in part:

"Here, this Court has not found any ascertainable expression of intent fromthe legislature on the retroactivity of this statute, and neither party hasdirected the Court to specific evidence of intent. Section 7 of Act 328,which created the statute at issue, merely states, "The provisions of thisAct shall become effective on January 1, 2015." Having found noexpression of intent, this Court proceeds to the second step of theinquiry-determining whether the statute is substantive, procedural orinterpretive..............................Thus, because the statute provides a newright to oppressed shareholders to withdraw and require the corporation tobuy their shares at fair value, it is substantive in nature and thereforesubject to prospective application only...........Here, to apply LouisianaRevised Statute 12:1-1435 to activities that occurred before January 1,2015 would be to evaluate past conduct through the lense of the statuteand potentially attach legal consequences to those past acts. This is thetype of retroactive application the Anderson Court found impermissible.Thus, the Court declines to consider alleged acts of shareholder oppressionthat occurred before January 1, 2015." (pp.___)

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(4) Succession of Younger, 206 So.3d 1088 (La. App. 2 Cir. 2016), rehearing denied,writ denied, 215 So.3d 685 (La. 2017) - Second Circuit concludes that a lawallowing a filiation claim to be brought within one year after the decedent's death,rather than the former law which required such claim to be brought within 19years after claimant's birth, applied to the alleged child's claim. The trial court'sgranting of exceptions of prescription and peremption were reversed. The SecondCircuit stated in part:

"In this case, Tellis's alleged father died in 2015, and Tellis filed a petitionfor filiation within one year of his death. At the time of the decedent'sdeath, article 209 had been repealed and article 197 was in effect. The oneyear peremptive period contained in the second clause of La. C.C. art. 197only concerns only [sic] the laws of succession. As set forth in La. C.C.art. 870, intestate succession rights are governed by the law in effect at thetime of decedent's death. Accordingly, we find that since Tellis filed herclaim for filiation within one year of her alleged father's death, her claim isnot perempted. See also Succession of Harrison, supra. To the extent thatarticle 197 revives a perempted claim, we find that the purpose of itsenactment and the clear language of La. C.C. art. 197, which must be readin conjunction with La. C.C. art. 870, is an expression of the legislature asto the retroactive application of the statute in the specific context of asuccession.

Additionally, we are mindful that the Youngers have cited jurisprudencefrom other circuits that support their argument. However, our review ofthe jurisprudence shows that no court has considered the retroactivity ofLa. C.C. art. 197 in light of and in conjunction with the law governingsuccessions as required by La. C.C. art. 870.

Considering the aforementioned, because the Louisiana Legislaturerepealed former article 209 and enacted La. C.C. art. 197 based on equityand policy considerations, the second clause of article 197 allows a childnot yet filiated who was born under the guise of the former repealed law toestablish a claim for filiation within one year of the alleged father's death."(pp. 1092-1093)(footnotes omitted)(emphasis added).

[Comment - Once acquired, is the right to plead prescription or peremption a"vested" right constitutionally equivalent to the right to sue on a cause of action?In accordance with C.C. Art. 3458, can an obligation extinguished throughperemption actually be revived? Is simply reading two laws together sufficient tofind legislative intent for "revival" of an otherwise prescribed or perempted claim?In the 2016 case of Kelleher v. Custom Homes By Jim Fussell, Inc. Not Reported

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in So.3d, 2016 WL 3127395 2015-1798 (La.App. 1 Cir. 6/3/16), the First Circuitsummarized the basics of the "revival" question as follows:

"In Chance v. American Honda Motor Company, Inc., 93–2582 (La.4/11/94), 635 So.2d 177, 178, the Louisiana Supreme Court set forth thetest for determining whether the legislature intended for a statute to reviveprescribed causes of action. In Chance, the court acknowledged thewell-established principle of statutory construction that “prescriptiveperiods relate to the remedy and are therefore treated as procedural lawsand applied retroactively,” but additionally noted that “the revival of analready prescribed claim presents additional concerns ...” because a changein the right to plead prescription, once acquired, “constitutes a substantivechange in the law as applied to the defendant.” Id.

Guided by the principles established in La. C.C. art. 6, the court inChance, characterizing the legislative revival of prescribed causes ofaction as “an extreme exercise of legislative power,” held that, at the veryleast, a clear and unequivocal expression of intent by the legislaturewould be required before the court would interpret such a legislativeintent behind a statute. Id. Finding no such clear expression of legislativeintent in the amendment to the prescriptive statute at issue, the court inChance declined to apply the amendment retroactively to revive an alreadyprescribed cause of action. Chance, 635 So.2d at 179; see also CameronParish School Board v. Acands, Inc., 96–0895 (La.1/14/97), 687 So.2d 84,91; In re Succession of James, 2007–2509 (La.App. 1st Cir.8/21/08), 994So.2d 120, 123–24, writ denied, 2008–2302 (La.12/12/08), 996 So.2d1119; Succession of Faget, 2005–1434, 2005–1435 (La.App. 1stCir.6/9/06), 938 So.2d 1003, 1007, writ denied, 2006–1719 (La.11/9/06),941 So.2d 40." (emphasis added)

"Retroactivity" and "revival" are very, very different things. Equity considerationsaside, the author believes that the above statements by the Chance court mean thata conclusion of "revival" cannot be reached solely through judicial inferencealone. There must also be: (1) an actual and separate expression of intent by thelegislature contained in the act at issue, and (2) such expression of intent must beclear and unequivocal in showing specific intent to revive a claim.

The language at issue in C.C. Art. 197 was enacted in 2005 by a law institute bill,Acts 2005 No. 192. There is no discussion of "revival" of claims in the Commentsto Art. 197. Section 3 of the Act states that "The provisions of this Act shall beapplicable to all claims existing or actions pending on its effective date and allclaims arising or actions filed on and after its effective date." This appearsinsufficient on its face to show "clear and unequivocal" intent for revival.]

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G. Severability. Arrow Aviation Company, LLC v. St. Martin Parish School Board TaxSales Dept, 218 So.3d 1031 (La. 2016) - Suit to recover amount of sales and use tax paidunder protest, claiming collector failed to apply a legislative tax exclusion. Trial courtfound exclusion unconstitutional. Supreme Court held: "(1) a legislative tax exclusionmust treat all local governmental subdivisions, school boards, and other politicalsubdivisions the same, otherwise it is prohibited by the constitution's uniformityprovision, abrogating Anthony Crane Rental, L.P. v. Fruge, 833 So.2d 1070; (2) stateconstitution's uniformity provision did not act to compel statewide local tax authorities toapply a permissive tax exclusion adopted by a different local tax authority; (3) statutoryexclusion from state and local sales tax, of charges for repairs to tangible personalproperty that was delivered to customers out of state, was constitutional as applied totaxpayer for audit periods during which the exclusion could be applied by tax authoritiesin all parishes in the same form, manner, or degree; but (4) exclusion wasunconstitutional as applied for audit periods during which the exclusion was mandatoryfor tax authorities in one particular parish, but optional for tax authorities in all otherparishes; and (5) unconstitutional portion of the statute would be severed and removed."Court stated in part:

"Because we find that a portion of the 2013–amendment violates ArticleVI, Section 29(D)(1) of the Louisiana Constitution, next we must decide whateffect this has on the statute.

The unconstitutionality of one portion of a statute does not necessarilyrender the entire statute unenforceable. World Trade Ctr. Taxing Dist. v. AllTaxpayers, Prop. Owners, 05–0374, p. 21 (La. 6/29/05), 908 So.2d 623, 637. Ifthe offending portion of the statute is severable from the remainder, this Courtmay strike only the offending portion and leave the remainder intact. Pierce v.Lafourche Par. Council, 99–2854, p. 9 (La. 5/16/00), 762 So.2d 608, 615. Butwhere the purpose of the statute is defeated by the invalidity of the offendingportion, the entire statute is void. World Trade Ctr. Taxing Dist., 908 So.2d at638. To decide whether a portion of a statute is severable, the question is whetherthe legislature would have passed the statute had it been presented with the invalidfeatures removed. Id. at 637.

Here, the constitutionally offensive portion of the La. R.S.47:301(14)(g)(i)(bb) (2013) is the portion mandating tax authorities in EastFeliciana Parish apply the exclusion. We find that this portion of the exclusion isseverable because the legislature's 2007 and 2011 versions of the exclusion didnot mandate that tax authorities in East Feliciana Parish apply the exclusion. Thepurpose of the statute, therefore, is not dependent on the unconstitutional portion.See World Trade Ctr. Taxing Dist., 908 So.2d at 638. Thus, the district courtproperly ordered the severing of the offending mandatory language of theexclusion applicable to tax authorities in East Feliciana Parish." (p. 1040).

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H. APA/Delegation/Agency Interpretation:

(1) Gulley v. Hope Youth Ranch, 221 So.3d 21 (La. 2017) - Workers' CompensationCourt had affirmed decision of Medical Director to deny request by claimant forspinal cord stimulator. Claimant sought review and appellate court affirmed.Supreme Court reversed, holding that Director and Office of Workers'Compensation misinterpreted the language of Louisiana Administrative Code andthus misapplied the Medical Treatment Guidelines on neurostimulation. SupremeCourt stated in part:

"The hearing officer determined the Medical Treatment Guidelinesallowed approval of neurostimulation only if "every bit" of the claimant'spain was relieved. The claimant contends such a reading of the statute createsan impossible situation in a case like his. He reasons, as did the dissentbelow, that, because he sustained multiple injuries as a result of a single workaccident, and no treatment, neurostimulation or otherwise, is available to treatall of his pain related to all of his injuries, then neurostimulation for a discreteinjured area could never be approved. The claimant points to the definitionof "topography" as contained in various medical dictionaries, to refer not toevery painful area on the body, but to specific anatomical areas. For example,"topography" is defined as follows: "the description of the regions of the bodyor of a body part, especially the regions of a definite and limited area of thesurface." See The American Heritage Medical Dictionary (Houghton MifflinCo., 2007). The defendants counter the Medical Treatment Guidelines areclear and unambiguous, and any potential ambiguity as to the use of the term"topography of pain" was directly and specifically addressed as theclarification of that term is contained within the guideline itself, and providesas follows: "(the entire painful area has been covered).

Although we find no ambiguity per se in the provision, we concludethe Medical Director and the Office of Workers' Compensation haveunnecessarily expanded the scope of the provision to encompass every regionof the body where the claimant is injured or experiencing pain, regardless ofthe source of the pain being experienced. Such an expansion of the requiredscope of the treatment leads to an absurd result, as exemplified in the instantcase. Contrary to the defendants' argument, the subject provision does notexpand "topography of pain" to every painful area on the body, or to theentire body, but instead delimits it to "the entire painful area...." Here, Dr.Domangue recommended a trial period of neurostimulation for Mr. Gulley's"significant" lower back, hip, and leg pain, diagnosed as "chronic L-5radiculopathy," because he met all criteria for the treatment under theMedical Treatment Guidelines, including addressing the topography of painacross that discrete region or area of his body related to the injury to his back.Dr. Domangue determined this area of pain is the "primary contributor" to the

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claimant's pain issues, and that a spinal cord stimulator trial is the onlyavailable option for seeking a solution to the claimant's pain and to make himnon-dependent on narcotics. No evidence or testimony in the recordcontradicts Dr. Domangue's determination. As the dissent below reasoned,the claimant's shoulder and ankle injuries are separate injuries, unrelated tothe L-5 radiculopathy. Thus, the claimant need not show that those areaswould be addressed by neurostimulation in order for the Medical Director toapprove the treatment trial related to the injuries to his spine or lower back.Accordingly, we find the Office of Workers' Compensation hearing officermisapplied the language of the provision that "[t]he topography of pain andits underlying pathophysiology are amenable to stimulation coverage (theentire painful area has been covered)...."(page 27)(emphasis added)

(2) Williams v. Opportunity Homes Limited Partnership, 220 So.3d 188 (La. App. 4th2017) - issue before the Court was whether assessor erred in utilizing marketapproach rather than income approach to determine the fair market value of a housingdevelopment located in Orleans Parish. Court stated in part:

"In a separate, yet related assignment of error, the Assessor assertsthat the Commission failed to properly promulgate a rule “requiring” theAssessor to use the income approach for all assessments of affordable rentalhousing; alternatively even if the Commission did, in fact, promulgate sucha rule, it violates La. R.S. 47:2323(A), which provides:

The criteria for determining fair market value shall apply uniformlythroughout the state. Uniform guidelines, procedures and rules andregulations as are necessary to implement said criteria shall beadopted by the Louisiana Tax Commission only after public hearingsheld pursuant to the Administrative Procedure Act.

The Assessor points to the Administrative Procedure Act, inparticular, La. R.S. 49:953, which requires notice of the Commission's intentto adopt, amend, or repeal a regulation, as well as an opportunity forinterested parties to respond. Instead of properly adopting a rule, inaccordance with the Administrative Procedure Act, the Assessor argues thatthe Commission instead relied on a prior ruling mandating use of the incomeapproach for affordable housing properties. This, he argues, is insufficientaccording to the requirements of La. R.S. 47:2323(A) and thus, constitutesan unauthorized promulgation of a regulation, which requires publishednotice of the Commission's intent to take action and an opportunity forinterested parties to respond.

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We agree and find that the Commission's current purported mandateis nothing more than a recommendation. In support of its position, theCommission, in its brief, noted this Court's “favorable treatment of St.Bernard I decision.” However, we note again that St. Bernard I isdistinguishable. Further, the Commission is an administrative agency and itsdecisions are merely an administrative adjudication without any precedentialvalue. The Commission is misguided in its argument that this Court shouldfollow its administrative adjudicative decision; its decisions are neitherbinding nor persuasive on this Court. Louisiana Revised Statute 47:2323leaves the choice of which approach the Assessor may use to determine FMVwith the Assessor. Anything contrary thereto violates the clear mandate of thestatute." (pp. 196-197) (emphasis added)

I. Statements by Legislators, Absurdity Issues, and Other Statutory ConstructionMatters:

(1) Statements by Legislators. Bombardier Aerospace Corporation v. United States,831 F.3d 268 (5th Cir. 2016), cert. denied, 2017 WL 661770, U.S., June 26, 2017,with the federal Fifth Circuit Court of Appeals stating, "With respect, statements byindividual legislators do not reliably reveal 'what a majority of both Houses ofCongress intended when they voted for the statute.' United States v. Ceballos BTorres, 218 F.3d 409, 414 n. 6 (5th Cir. 2000)." (page 277). (emphasis added)

(2) Statements by Legislators. N.L.R.B. v. SW General, Inc.,___U.S.___, 137 S. Ct. 929(2017), with the majority opinion by Chief Justice Roberts stating in part:

"The Board protests that Congress would not have expanded the prohibitionon nominees serving as acting officers after Senators asked to give the Presidentmore flexibility. See Brief for Petitioner 45–46. That certain Senators made specificdemands, however, does not mean that they got exactly what they wanted. Passinga law often requires compromise, where even the most firm public demands bend tocompeting interests. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,93–94, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). What Congress ultimately agreeson is the text that it enacts, not the preferences expressed by certain legislators. SeeOncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140L.Ed.2d 201 (1998) (“[I]t is ultimately the provisions of our laws rather than theprincipal concerns of our legislators by which we are governed.”).

Compromise is precisely what happened here: “[A] period of intensenegotiations” took place after Senators demanded changes to the original draft of theFVRA, and the final bill was “a compromise measure.” Rosenberg 9. The legislationas passed did expand the pool of individuals the President could appoint as actingofficers, by adding senior employees in subsection (a)(3). But it also expanded the

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scope of the limitation on acting service in (b)(1), by dropping the language making(b)(1) applicable only to first assistants.

The Board contends that this compromise must not have happened becauseSenator Thompson, one of the sponsors of the FVRA, said that subsection (b)(1)“applies only when the acting officer is the first assistant, and not when the actingofficer is designated by the President pursuant to §§ 3345(a)(2) or 3345(a)(3).” 144Cong. Rec. 27496 (1998). But Senator Byrd—the very next speaker—offered acontradictory account: A nominee may not “serve as an acting officer” if “he is notthe first assistant” or “has been the first assistant for less than 90 ... days, and has notbeen confirmed for the position.” Id., at 27498. This is a good example of why floorstatements by individual legislators rank among the least illuminating forms oflegislative history. See Milner v. Department of Navy, 562 U.S. 562, 572, 131 S.Ct.1259, 179 L.Ed.2d 268 (2011) (“Those of us who make use of legislative historybelieve that clear evidence of congressional intent may illuminate ambiguous text.We will not take the opposite tack of allowing ambiguous legislative history tomuddy clear statutory language.”). (pp. 942-943) (emphasis added).

(3) Absurdity and Dueling Statutory Construction Principles. Shelton v.Pavon,____So.3d____ (La. 2017) - Suit to nullify a change of beneficiary. Inresponse to plaintiff's pleadings, defendant filed a reconventional demand fordefamation. Plaintiff responded with special motion to strike pursuant to CCP Art.971. Trial court granted but appellate court reversed. Supreme Court affirmedappellate court and stated:

"we hold that La. Code Civ.Pro. art. 971(F)(1)(a), which states that “[a]nywritten or oral statement or writing made before a legislative, executive, orjudicial body” is an “[a]ct in furtherance of a person’s right of petition or freespeech … in connection with a public issue,” must nonetheless satisfy therequirement of La. Code Civ. Pro. art. 971(A)(1), that such statements bemade “in connection with a public issue….” We therefore conclude the courtof appeal was correct in reversing the trial court’s ruling granting Dr.Shelton’s special motion to strike, and in awarding reasonableattorney fees and costs to Ms. Pavon as the prevailing party, tobe determined by the trial court on remand. Accordingly, thejudgment of the court of appeal is affirmed." (WEIMER, J., dissents andassigns reasons. CLARK, J., dissents for the reasons given by JusticeWeimer. HUGHES, J., dissents with reasons. CRICHTON, J., additionallyconcurs and assigns reasons.) (emphasis added).

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(a) Majority opinion resolves split between circuits on whether pleadings filedinto the record of a judicial proceeding per se fall within the definition of anact "in furtherance of the person's right of petition or free speech" ascontemplated by Art. 971(F)(1)(a).

(b) The plaintiff had argued the Article's language was plain and unambiguousand must be broadly construed. The defamation claim against him arose fromthe allegations set forth in his petition and thus was subject to a specialmotion to strike. To add the requirement that statements made in a judicialproceeding must also be made in connection with a public issue was in effecta prohibited rewriting by the courts of the article's language.

The majority opinion disagreed and concluded instead that thelanguage of the article was ambiguous, stating:

"As observed by the Fourth and Fifth Circuits, though the latter withregard to Article 971(F)(1)(b), this language can be read to providethat a special motion to strike will apply to any issue broughtbefore a judicial proceeding, because it was made in furtherance ofthe person’s right of petition. On the other hand, Article 971(F)(1)(a)may as easily be interpreted to mean that a special motion to strikewill apply only to statements or writings before a judicial proceedingin connection with a public issue. Clearly there is ambiguity inthis language given that all five of our circuit courts have reviewedand interpreted this language, with two circuits adopting the latterview, and three circuits adopting the former. Ultimately, pursuant toour duty to resolve such impasses, we agree that a reading of thestatute to apply to any issue made before a judicial proceeding,without a requirement that it be connected to a public issue, can leadto absurd results.......................................Given the competingviewpoints among our lower courts as to how to interpret the plainlanguage of the statute, it is no surprise that there is similarly ad ive rge n c e o f v i ews on wha t t he l eg i s l a tu reintended..................Having completed our review, and giving duerespect to our colleagues on the appellate courts, we must concludethat La. Code Civ. Pro. art. 97l(F)(l)(a) applies to any written or oralstatement made before a legislative, executive, or judicial proceeding,or any other official proceeding authorized by law, so long as it ismade “in connection with a public issue.” In Connick v. Myers, 461U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), theUnited States Supreme Court described speech on matters of publicconcern as speech “relating to any matter of political, social, or otherconcern to the community.”

With regard to the merits of the dispute before us, the court of

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appeal correctly found that Dr. Shelton’s petition to nullify a changein beneficiary to his wife’s life insurance policy is a private disputeinvolving private parties, and not a matter of public concern orsignificance. Therefore, Dr. Shelton did not satisfy his initial burdenof demonstrating that his petition is an act in furtherance of his rightof petition “in connection with a public issue” as required by Article971(A)(1). (emphasis added).

(c) Weimer dissent: "The issue presented in this case is whether a defendant,moving specially under La. C.C.P. art. 971 to strike a plaintiff’s demand fordefamation, arising out of a written statement made in a judicial proceeding,must additionally demonstrate that the statement concerned an issue of publicsignificance. The majority answers this question in the affirmative. I disagree,believing the conclusion is supported neither by the plain language of thearticle, the rules of statutory construction, nor the expressed intent of thelegislature............ plainly read, La. C.C.P. art. 971 encompasses a cause ofaction against a person arising from any statement made in a judicialproceeding. I find there is nothing ambiguous about this language. Apart fromnoting there is a split among the courts of appeal as to the properinterpretation of the code article, no authority, legal or grammatical, isprovided for the conclusion that the language of La. C.C.P. art. 971(F)(1)(a)is ambiguous. Quite the opposite: the finding of ambiguity results solely fromthe decision of some courts to insert qualifying language not present in La.C.C.P. art. 971(F)(1)(a)–the phrase “in connection with a public issue”–tootherwise clear and straightforward language.

Perhaps recognizing the thin thread upon which the finding ofambiguity rests, the conclusion reached in the opinion is that a literal readingof the codal provision “can lead to absurd results” because its applicationcould extend beyond matters of “public significance” into purely privateconcerns. Shelton, slip op. at 8. However, the legislative response to thisobjection is found in the plain language of the provision itself: pursuant to La.C.C.P. art. 971(F)(1) and (1)(a), any written or oral statement or writing madebefore or in connection with a judicial proceeding is by definition an “[a]ctin furtherance of a person’s right of petition or free speech under the UnitedStates or Louisiana Constitution in connection with a public issue.”............[the language] reflects a clear choice by the legislature in these twoprovisions to define a “public issue” in terms of setting or context ratherthan content. Thus, under La. C.C.P. art. 971(F)(1)(a), it is the setting–in this case, a judicial proceeding–that makes the issue a public one. There isno additional requirement that the statement relate to an issue of publicsignificance.

This is, incidentally, consistent with, and reflects the legislaturerecognizing the special protection that has been afforded statements made in

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the course of judicial proceedings. That protection is embodied in thequalified privilege that exists in Louisiana with respect to such speech. It isalso reflective of a legislative recognition that any matter pending before thejudiciary possesses some measure of “public significance” owing to thepublic nature of judicial proceedings..........................That the thresholdshowing of an act in furtherance of the right to petition or free speech inconnection with a public issue, as defined in La. C.C.P. art. 971(F)(1)(a) and(b), encompasses a broad range of situations does not mean the applicationof clear and unambiguous language produces absurd consequences. Indeed,it is not absurd to conclude (as the legislature obviously did) that judicialproceedings, which are open to the public, present matters of publicsignificance and are deserving of protection from efforts to chill the right topetition or free speech in connection therewith, or that it is appropriate, inlight of the qualified privilege that exists with regard to statements made injudicial proceedings, to allow the protection that extends to such statementsto be recognized at an early stage of the proceedings....................In our civillaw system, in which legislation is supreme, we must be careful not toprematurely declare a result absurd when there is a reasonable constructionof the language that can avoid such a conclusion. Although La. C.C. art. 9enables the judiciary to abandon statutory language in instances in which anabsurd result would ensue from a literal application of the words, thejudiciary should be hesitant to alter the legislative will by doing so."(emphasis added).

(4) Absurdity. Seguin v. Remington Arms Company, LLC, United States District Court,E.D. Louisiana, May 16, 2017--- F.Supp.3d ----2017 WL 2119951, Appeal Filed, 5th

Cir., June 14, 2017 - Eastern District concluded plaintiff could assert and recover ona claim for design defect of a rifle under the Louisiana Products Liability Act, La.R.S. 9:2800.56 and 2800.60. Defendant had argued recovery precluded under Actlanguage. Plaintiff argued that statutory language was ambiguous and, if appliedliterally, would lead to an absurd result. Court agreed with plaintiff and stated in part:

"Section 9:2800.60 was originally introduced as House Bill 1639 on March29, 1999. OFFICIAL JOURNAL OF THE HOUSE OF REPRESENTATIVES OFTHE STATE OF LOUISIANA, First Day's Proceedings, p. 181 (March 29, 1999).7On April 8, 1999, the House voted overwhelmingly to pass an amended version ofthe bill. Id. at Eighth Day's Proceedings, p.376.

The bill was introduced to the Louisiana Senate and referred to theCommittee on Judiciary A on April 12, 1999. LOUISIANA STATE SENATE, DailyJournals for the 1999 Regular Session, April 12, 1999, at pp. 5, 13.8 On May 18,1999, the Judiciary Committee reported the bill favorably. Id. at May 18, 1999, p.44.9 During this meeting, the following exchange took place:

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Senator [John] Hainkel asked Senator Jay Dardenne, “In regards to Section B, wouldyou see if it would do any damage to put a defective design exclusion? I would liketo have your comments before it comes before the full senate.” Senator Dardenneagreed to do so and said, “I think that we ought to have to try and preserve causes ofaction that might be appropriate for malfunctions.” Rec. Doc. 155–1 at 7......................................

The exchange between Senators Hainkel and Dardenne demonstrates that thelegislature considered excluding design defect claims under subsection (B). The factthat the legislature considered excluding these claims and ultimately passedlegislation that may reasonably be interpreted in a way to exclude these claims ispersuasive evidence that the legislature intended to exclude these claims.

Assuming that the legislature so intended, this Court must determine ifsubsection (B) is properly interpreted to apply to all claims arising from a shootingor to only those claims arising from a third-person shooting. While the formerinterpretation seems more likely to the Court, based on a logical reading of theparagraph and the fact that the legislature did not say “injury by any third person”instead of “injury by any other person,” this interpretation would render othersubsections superfluous. Of course, this Court “should not adopt a statutoryconstruction that makes any part superfluous or meaningless, if that result can beavoided.” Sultana Corp., 860 So.2d at 1116 (citations omitted). The interpretationoffered by Defendant does not render the remainder of the statute superfluous.So, assuming that the legislature intended to exclude design defect claims undersubsection (B) and that it would approve of Defendant's interpretation of thatsubsection, we must now consider whether or not the subsection produces absurdresults................................

Here, application of subsection (B) using Defendant's interpretation leads toabsurd consequences. Defendant offers no reasonable explanation, and this Courtcannot imagine one, for limiting the design defect claims of a person injured by athird-party but allowing such claims if brought by a person who was injured by himor herself (or the manufacturer or seller, in the unlikely circumstance that themanufacturer or seller was also the shooter). If the goal was to limit frivolous claimsagainst gun manufacturers and sellers, as Defendant claims, why would thelegislature limit subsection (B) in this arbitrary way? During oral argument, defensecounsel admitted that its preferred interpretation would lead to “inconsistent” results,but nevertheless maintained that precluding all but manufacturing defect claims whena third-person shooter is involved was the legislature's decision and is not, in and ofitself, absurd.

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On the other hand, if the Court uses the alternative interpretation, whichwould effectively eliminate all but manufacturing defect claims against firearmmanufacturers and sellers, then aspects of § 9:2800.60 would be rendered superfluous(particularly subsections (D), (E), and (F)).

At the end of the day, under either interpretation, application of the statutewould lead to absurd consequences. If a gun manufacturer designed a gun thatroutinely discharged accidentally, a person injured by a third party because of thatdefect would not be permitted to sue the manufacturer under the LPLA as long as thegun was manufactured according to the manufacturer's specifications. Thosespecifications could be designed by a three-year-old and the gun manufacturer couldnot be held liable. This is absurd....................Therefore, neither interpretation makessense.

“When the language of the law is susceptible of different meanings, it mustbe interpreted as having the meaning that best conforms to the purpose of the law.”LA. CIV. CODE ANN. art. 10. Subsection (A) and the committee minutes from May18, 1999 indicate that § 9:2800.60 was designed to “make[ ] it clear” that the LPLA“was never designed to punish a manufacturer or seller for the improper use of aproperly designed and manufactured product.” Rec. Doc. 155–1 at 5. It was “aimedat making it real clear in existing law that product liability law was never intendedfor someone to come in and make additional regulations on guns and clearly neverintended to make it possible for someone to sue a gun maker for [ ] making a legalproduct.” Id. Senator Steve Scalise explained that “gun owners could still sue a gunmanufacturer if a weapon is defective. But if someone misuses a gun and causes anaccident, or uses a gun to commit a crime, the manufacturer should not be heldresponsible.” Id. at 6. At no point during this discussion or in subsection (A), the“general preamble,” did the legislature state that the purpose of the law was to limitproduct liability claims against gun manufacturers and sellers to claims formanufacturing defect.

Granted, it was after the introduction of the legislation during the SenateJudiciary committee that Senator Hainkel asked Senator Dardenne about excludingdesign defect claims under subsection (B). Id. However, Senator Dardenne repliedthat they should “try and preserve causes of action that might be appropriate formalfunctions.” Id. A “malfunction” is defined as both to “fail to operate in the normalor usual manner” (suggesting a manufacturing defect) and “to function imperfectlyor badly” (suggesting a design defect). WEBSTER'S NINTH NEW COLLEGIATEDICTIONARY (1984). All we know is that subsection (B), though originally rejectedas an amendment, was thereafter adopted and enacted as part of § 9:2800.60. Itsadoption, however, presumably did not signal a change in the purpose of the law,reflected in subsection (A), merely to clarify existing law. That purpose is notfurthered by precluding design defect claims against gun manufacturers. See, e.g.

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McLane S., Inc. v. Bridges, 11-1141, pp. 8-9 (La. 1/24/12); 84 So.3d 479, 485 (“Inorder for a court to find a literal application results in ‘absurd consequences,’ ‘theremust be a determination by the court that the specific application at issue arising fromthe literal wording would, if judicially enforced, produce a factual result soinappropriate as to be deemed outside the ‘purpose’ of the law.' ”) (quoting P.Raymond Lamonica and Jerry G. Jones, 20 Louisiana Civil Law Treatise: LegislativeLaw and Procedure, § 7.4 (2011 ed.)). Therefore, Plaintiff may bring a § 9:2800.56design defect claim against Defendant under § 9:2800.60(B)."

[Question: Is the Court's treatment of statements by legislators consistent with theBombadier and NLRB cases mentioned in this outline?]

J. Language and Punctuation:

(1) State v. Lemoine, 222 So.3d 688 (La. 2017) - Question was whether there wassufficient evidence to convict defendant of money laundering under R.S.14:230(B)(2) by scheme to fraudulently overbill Union Pacific Railroad for dieselfuel. Rejecting arguments that the statutory language of the section was problematic,the Court stated in part:

"Moreover, related concerns that Section (B)(2) is open-ended, because itapplies to "anything of value," overlook the purpose of the money launderingstatute, which is not to enable prosecutors to latch onto most any crime and,on a whim, elevate the charges to the offense of money laundering, but ratheras the statute's title announces, to prohibit "transactions involving proceedsof criminal activity." See R.S. 14:230."

[footnote to above stated - "Notably, though the title of an act is not a part ofthe statute, it can be used to resolve doubt as to legislative intent as to aspecific provision. See, e.g., State v. Williams, 10-1514, p. 7 (La. 3/15/11),60 So.3d 1189, 1192; Authement v. Shappert Engineering, 02-1631, p. 8 (La.2003), 840 So.2d 1181, 1186 (title of an act "may be instructive indetermining legislative intent"); State v. Madere, 352 So.2d 666, 668 (La.1977) (same); see also Schimpf v. Thomas, 204 La. 541, 559, 15 So.2d 880,886 (1943) ("A title is no part of a statute, but it may be considered indetermining the legislative intent where doubt exists."). Here, simplyrevisiting the statute's title settles any doubt generated by use of the phrase"anything of value" to describe thing(s) being laundered in a Section (B)(2)case. Cf. Williams, 10-1514, p. 8, 60 So.3d at 1193."]

[NOTE: In this instance the Court is referring not to the title of a legislativeact but to the title of a section a/k/a statutory caption a/k/a statutory headinga/k/a section heading. La. R.S. 1:§13(A) states that "A. Headings to sections,

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source notes, and cross references are given for the purpose of convenientreference and do not constitute part of the law." See also, U.S. v. QualityStores, Inc., 134 S.Ct. 1395 (2014), stating at page 1402: "In the last of itstextual arguments, Quality Stores draws attention to the boldface heading of§ 3402(o ), which states, "Extension of withholding to certain payments otherthan wages." It contends the heading declares that the payments enumeratedwithin § 3402(o ) are "other than wages." Captions, of course, can be "auseful aid in resolving" a statutory text's "ambiguity." FTC v. MandelBrothers, Inc., 359 U.S. 385, 388-389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959).But Quality Stores cannot rely on

the statutory heading to support its argument that § 3402(o ), withoutambiguity, excludes all severance payments from the definition ofwages. The heading states that withholding is extended to "certainpayments." This falls short of a declaration that all the paymentslisted in § 3402(o ) are not wages."]

(2) Punctuation. Regarding punctuation in statutory language and the use or nonuse ofthe "Oxford" comma, media attention recently focused upon a case in Maine,O'Connor v. Oakhurst Dairy, 851 F.3d 69 (2017). In this matter, the Court's opinionstated in part:

"For want of a comma, we have this case. It arises from a disputebetween a Maine dairy company and its delivery drivers, and it concerns thescope of an exemption from Maine's overtime law. 26 M.R.S.A. § 664(3).Specifically, if that exemption used a serial comma to mark off the last of theactivities that it lists, then the exemption would clearly encompass an activitythat the drivers perform. And, in that event, the drivers would plainly fallwithin the exemption and thus outside the overtime law's protection. But, asit happens, there is no serial comma to be found in the exemption's list ofactivities, thus leading to this dispute over whether the drivers fall within theexemption from the overtime law or not.

The District Court concluded that, despite the absent comma, the

Maine legislature unambiguously intended for the last term in the exemption'slist of activities to identify an exempt activity in its own right. The DistrictCourt thus granted summary judgment to the dairy company, as there is nodispute that the drivers do perform that activity. But, we conclude that theexemption's scope is actually not so clear in this regard. And because, underMaine law, ambiguities in the state's wage and hour laws must be construedliberally in order to accomplish their remedial purpose, we adopt the drivers'narrower reading of the exemption. We therefore reverse the grant ofsummary judgment and remand for further proceedings." (page 70).

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Some legal writers took the position the media had in its coverage simplified whatwere actually more nuanced and complex questions of statutory construction, and hadalso ignored the effects of applicable jurisprudence. See, e.g., Meyer, "It's Not theOxford Comma, It's the Ambiguity", 8 Houston Law Review 25 (Fall 2917), noting that "a quick review of additional case law reveals that the Oxford comma alone isnot a substitute for careful drafting to avoid ambiguity, nor does the use or omissionof the serial comma alone create ambiguity." (page 25).

Louisiana cases can very briefly be summarized as follows:

Courts are not strictly bound by rules of punctuation or grammar ininterpretation. Smith v. State, Through Dept. of Public Safety, 366 So. 2d1318 (La. 1978); State v. Reed, 667 So. 2d 586 (La. Ct. App. 2d Cir. 1996);State v. Anderson, 540 So. 2d 974 (La. Ct. App. 2d Cir. 1989). In Pumphreyv. City of New Orleans, 925 So. 2d 1202 (La. 2006), the Louisiana SupremeCourt stated at pages 1211 to 1212: "Moreover, the law shall be applied aswritten, and therefore, a court must give effect to the literal application of thelanguage of a statute, including its grammatical construction, except in therare case where such application will produce absurd or unreasonable results.U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 1031,103 L. Ed. 2d 290 (1989) La. Civ. Code art. 9. In such manner, punctuationas well as grammatical construction in general, although never relied upon todefeat the obvious intent, may operate as an aid in the construction andinterpretation of the statute. Joy v. City of St. Louis, 138 U.S. 1, 32, 11 S. Ct.243, 251, 34 L. Ed. 843 (1891)." Discussing the effect of commas in statutorylanguage, see Louisiana Associated General Contractors, Inc. v. LouisianaDept. of Agriculture and Forestry, 924 So. 2d 90 (La. 2006), and C.J.S.,Statutes § 333.

In the General Contractors case above, the Louisiana Supreme Court stated:

"The language chosen by the legislature in 3:266(14) is "with or withoutpublic bidding." The lower courts held that those words provided an expressexemption from the Public Bid Law and applied to all of the powers listed inLa. R.S. 3:266(14), not just the immediately preceding phrase "at public orprivate sale" as argued by LAGC. Specifically, the court of appeal held that"from the statute's own words, LAFA has the power to '[a]cquire ...; ...construct ..., and sell ... [movable and immovable property], subject to therights of holders of the bonds of the Authority, at public or private sale, withor without [public] bidding.' " 897 So.2d at 701. We agree and note thatLAGC's argument that "with or without public bidding" refers only to thephrase "at public or private sale" ignores the fact that there is clearly a commabetween those two phrases and that negates the "general rule ... that relative

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and qualifying clauses are to be applied to the words or phrase immediatelypreceding and are not to be construed as extending to or including othersmore remote." State v. Burns, 29,632 (La.App. 2 Cir. 9/24/97), 699 So.2d1179, 1181 (citing 82 C.J.S. Statutes, § 334, at 670, 671 (1953)). "There is arule of statutory interpretation that the presence of a comma separating amodifying clause in a statute from the clause immediately preceding is anindication that the modifying clause was intended to modify all the precedingclauses and not just the last antecedent one." Id."

K. Use (and misuse) of "legislative history" in statutory interpretation:

(1) Comment: "It should be noted that legislative history and legislative intent do notmean the same thing." 2A Sutherland Statutory Construction §48.1 (7th ed.)(emphasis added).

Separation of powers issues underlie determinations of legislative intent. Nobranch of government shall exercise power belonging to the other branches, exceptas otherwise provided by the constitution. La. Const. Art. II, §§1 and 2. (See also,Hargrave, The Louisiana State Constitution: A Reference Guide, noting on page 43that the 1974 constitution "blurs the distinction as to which powers are executive,legislative and judicial.")

(2) The above statement notwithstanding, it is clear that the determination of legislativeintent is part of statutory construction and thus the sole province of the judiciary. Statutory interpretation and the construction to be given to legislative acts are mattersof law and rest with the judicial branch of government. It has long been establishedthat `[i]t is emphatically the province and the duty of the judicial department to saywhat the law is.' Bourgeois v. A.P. Green Industries, Inc., et al., 783 So.2d 1251,1260 (La. 2001) (internal citations omitted). The interpretation of the law belongs tothe judiciary, and not the Legislature. Mallard Bay Drilling, Inc. v. Kennedy, 914So.2d 533, 544 (La. 2005). As a matter of law, statutory interpretation is subject tode novo review by appellate courts. Holly & Smith Architects, Inc. v. St. HelenaCongregate Facility, 943 So.2d 1037 (La. 2006).

(3) Proof of "legislative intent" is not the same as proof of "fact". When a court mustlook beyond the text of law to determine its "intent" or "purpose", the potential useof legislative history or other extrinsic materials as "evidence" of such intent raisesdifficult issues of probative value. Two main questions are involved: (1) whatmaterials are (and are not) relevant and appropriate to consider as credible "evidence"of such intent; and (2) If such materials are appropriate, then what weight (if any)should be given to their contents?

In answering these questions, courts must take care not to effectively cedetheir constitutional function under separation of powers to the legislature or acomponent thereof, by automatically accepting statements or documents in the

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legislative record as both appropriate for consideration and "conclusive" on thequestion of intent.

(4) Finally, it should always be kept in mind that consideration of legislative history, ifat all, is the last resort of statutory interpretation. The starting point is always the textof the law itself. R.S. 1:4 and Civil Code Article 9 are explicit:

R.S. 1,§4. Unambiguous wording not to be disregarded When the wording of a Section is clear and free of ambiguity, the

letter of it shall not be disregarded under the pretext of pursuing its spirit.

Art. 9. Clear and unambiguous law When a law is clear and unambiguous and its application does not

lead to absurd consequences, the law shall be applied as written and nofurther interpretation may be made in search of the intent of the legislature.

NOTE: However, inquiry into discriminatory or other prohibited legislative "intent"may arise where fundamental constitutional rights are involved, such as equalprotection, first amendment, and dormant commerce matters. See, e.g., Fallon,Constitutionally Forbidden Legislative Intent, 130 Harv. L. Rev. 523 (2016); Dorf,Even A Dog: A Response to Professor Fallon, 130 Harv. L. Rev. F. 86 (2016);Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. Rev. 1784 (2008).

Terrebonne Parish Branch NAACP v. Jindal, --- F.Supp.3d ---- 2017 WL 3574878(M.D. La. 2017), Appeal Filed, 5th Circuit, September, 2017 -Plaintiffs claimed that(1) use of at-large voting for election to the 32nd JDC effectively afforded blackminority voters of Terrebonne less opportunity to elect judicial candidates of theirchoice, and (2) discriminatory purpose was a motivating factor in the maintenanceof at-large voting for the 32nd JDC. Court agreed and concluded that at-large votingfor the 32nd JDC deprived black voters of the equal opportunity to elect candidatesof their choice in violation of Section 2 of the Voting Rights Act, and it wasmaintained for that purpose, in violation of Section 2 and the United StatesConstitution. As part of its findings, Court discussed history of legislation concerningthe 32nd JDC and stated in part:

"In addition to their discriminatory impact claim, the Plaintiffs alsoclaim that the at-large system in the 32nd JDC has been maintained with aracially discriminatory purpose in violation of Section 2, the FourteenthAmendment, and the Fifteenth Amendment. To prevail on a vote dilutionclaim under either the Fourteenth or Fifteenth Amendment, a plaintiff mustshow that an electoral system has a "discriminatory or dilutive effect and adiscriminatory purpose." At-large districts violate the Constitution if they are"conceived or operated as purposeful devices to further racial discrimination

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by minimizing, cancelling out or diluting the voting strength of racialelements in the voting population.

A state violates the Constitution and Section 2 if it maintains an

at-large voting system "for the invidious purpose of diluting the votingstrength of the black population." In order to prove that an electoral systemis being maintained for discriminatory purposes, a plaintiff only needs toshow that "a discriminatory purpose [was] a motivating factor" in thechallenged decision."Racial discrimination need only be one purpose, and noteven a primary purpose, [to establish] a violation of the Fourteenth andFifteenth Amendments."

To prove discriminatory intent, a plaintiff may rely upon direct or

circumstantial evidence. A plaintiff is not required to bring forward directevidence because "[i]n this day and age we rarely have legislatorsannouncing an intent to discriminate based upon race...To require directevidence of intent would essentially give legislatures free rein to raciallydiscriminate so long as they do not overtly state discrimination as theirpurpose and so long as they proffer a seemingly neutral reason for theiractions. This approach would ignore the reality that neutral reasons can anddo mask racial intent, a fact we have recognized in other contexts that allowfor circumstantial evidence."

In Arlington Heights, the Supreme Court identified five

non-exhaustive factors that guide the circumstantial evidence inquiry: (1) thehistorical background of the challenged decision: (2) the sequence of eventsleading up to the challenged decision: (3) departures from the normalprocedural sequence: (4) substantive departures: and (5) legislative history,especially where there are contemporary statements by decision-makers.37Once a plaintiff shows that race was a motivating factor, the "burden [then]shifts to the law's defenders to demonstrate that the law would have been[maintained] without this factor.

................................[Court discussed proposed legislation and otheractivities concerning the 32nd JDC]

District-based voting was rejected for the 32nd JDC on at least sixoccasions between 1997 and 2011. Taken as a whole, this timeline showsdiscriminatory intent. Local white officials, including the judges on the32nd JDC, originally wanted an additional judgeship, but when blackadvocates requested that the new judgeship be elected from a subdistrict,this request was withdrawn. This occurred again with the Houma City

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Court-requests for an additional judgeship were made, and when localwhite officials heard that a request was made for a subdistrict, they gotinvolved and effectively defeated the request. In 2011, when the requestwas not for an additional judgeship, but rather for a rearrangement of themethod of election, the reasons offered in opposition appeared even morepretextual. The Court is unwilling to accept that the lack of publiccomment or the failure of the Judicial Council to issue an opinion were thetrue reasons behind the opposition. Accordingly, the Court finds that thispattern shows that a motivating purpose in maintaining the at-largeelectoral scheme for the 32nd JDC was to limit the opportunity of blackindividuals to participate meaningfully and effectively in the politicalprocess to elect judges of their choice.

....................................

The Court finds that (1) the discriminatory impact of at-largevoting: (2) the sequence of events leading to the rejection of many effortsto create a subdistrict: and (3) the pretextual arguments made by theopponents of the subdistrict demonstrate that a discriminatory purpose wasa motivating factor in the maintenance of the at-large system for the 32ndJDC in Terrebonne Parish. The Court finds that at-large voting would nothave been maintained without this discriminatory purpose." (pp.____)

(5) Tobin v. Jindal, 91 So.3d 317 (La. App. 1 Cir. 2012) - "While we recognize thatthe complete legislative history flowing from SR 123 is not part of the record inthis case, reviewing courts have inherent judicial authority to review legislativehistory materials.......... A court may take judicial notice of legislative recordswhere preserved, as they are a matter of public record. See State Farm Mut. Auto.Ins. Co. v. U.S. Agencies, L.L.C., 2005-0728 (La.App. 1st Cir.3/24/06), 934So.2d 745, 748, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288."

(6) Acts 2006 No. 826 -

R.S. 1: 13 - "§13. Headings and ancillary information, not part of lawA. Headings to sections, source notes, and cross references are given for

the purpose of convenient reference and do not constitute part of the law. B. The keyword, one-liner, summary and adjoining information, abstract,

digest, and other words and phrases not contained in the section or sections of thebill following the enacting clause do not constitute part of the law."

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R.S. 13:3711 - "§3711. Legislative journals; conclusively presumptiveThe official journals of legislative proceedings, which are

self-authenticating under Chapter 9 of the Louisiana Code of Evidence, shall beconclusively presumptive of the existence and contents of the originals and of anyact, transactions, or occurrence of which said journals were made."

R.S. 24:177 - "§177. Legislative intent; text, history, and other indices of intentA. When the meaning of a law cannot be ascertained by the application of

the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Codeand Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950, the court shallconsider the intent of the legislature.B.(1) The text of a law is the best evidence of legislative intent.(2)(a) The occasion and necessity for the law, the circumstances under which itwas enacted, concepts of reasonableness, and contemporaneous legislativehistory may also be considered in determining legislative intent.(b) The legislature may express the intended meaning of a law in a duly adoptedconcurrent resolution, by the same vote and, except for gubernatorial veto andtime limitations for introduction, according to the same procedures and formalitiesrequired for enactment of that law.

C. The legislature is presumed to have enacted an article or statute in lightof the preceding law involving the same subject matter and court decisionsconstruing those articles or statutes, and where the new article or statute is wordeddifferently from the preceding law, the legislature is presumed to have intended tochange the law.

D. A bill introduced but which does not become law is not competentevidence of legislative intent. Any action by the legislature other than enactmentof law or adoption of a resolution as provided in Subparagraph (B)(2)(b) of thisSection shall not constitute a confession as to the meaning of the law extant.

E.(1) The keyword, one-liner, summary and adjoining information,abstract, digest, and other words and phrases contained outside the sections of abill following the enacting clause are solely to provide the members of thelegislature with general indicia of the content of the bill and are not subject toamendment by the legislature or any committee of the legislature and shall notconstitute proof or indicia of legislative intent.(2) Fiscal and actuarial notes provide the legislature with an analysis of thepotential fiscal impact of a bill based on presumptions made by the legislativefiscal officer, actuary, economist, or analyst preparing the note and shall notconstitute proof or indicia of legislative intent.(3) Committee minutes are summary reports of committee proceedings and shallnot constitute proof or indicia of legislative intent.(4) Words and phrases not constituting the substance of an amendment or therecommendations of a conference committee report, and any other legislative staffdocuments which are not subject to amendment by the legislature or any

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committee of the legislature, shall not constitute proof or indicia of legislativeintent." [emphasis added]

(7) Court like some parts of Acts 2006 No. 826 and R.S. 24:177, see e.g.:

(a) “The legislature is presumed to have enacted an article or statute in light ofthe preceding law involving the same subject matter and court decisionsconstruing those articles or statutes, and where the new article or statute isworded differently from the preceding law, the legislature is presumed tohave intended to change the law.” La. R.S. 24:177(C)." - Board of Ethicsin Matter of Savoie, 224 So.3d 1246 (La. App. 1 Cir. 2017). See also, Texans Credit Union v. Louisiana Dept. of Agriculture and Forestry, 64So.3d 869 (La. App. 1 Cir. 2011).

(b) “The text of a law is the best evidence of legislative intent.” La. R.S.24:177(B)(1). It is only “[w]hen the meaning of a law cannot beascertained by the application of the provisions of Chapter 2 of thePreliminary Title of the Louisiana Civil Code and Chapter 1 of Title 1 ofthe Louisiana Revised Statutes of 1950,” that “the court shall consider theintent of the legislature.” La. R.S. 24:177(A) - footnote 3, Boren v. Taylor,223 So.3d 1130 (La. 2017) (Mem).

See also, Borcik v. Crosby Tugs, L.L.C. 222 So.3d 672 (La. 2017); Franksv. Louisiana Patient's Compensation Fund Oversight Board, 220 So.3d862 (La. App. 1 Cir. 2017); New Orleans Bulldog Society v. LouisianaSociety for the Prevention of Cruelty to Animals, 222 So.3d 679 (La.2017); Medine's Collision Center, LLC v. Progressive Direct Ins. Co., 199So.3d 38 (La. App. 1 Cir. 2016); Rebel Distributors Corp., Inc. v. LUBAWorkers' Comp., 144 So.3d 825 (La. 2013); State v. Chinn, 92 So.3d 324(La. 2012); McLane Southern, Inc. v. Bridges, 84 So.3d 479 (La. 2012).

But:

(c) Southeast Louisiana Bldg. and Const. Trades Council, AFL-CIO v.Louisiana ex rel. Jindal, 107 F.Supp.3d 584 (E.D. La. 2015) - "Thoughcourts have looked to explicit legislative statements of purpose inpreambles to statutes for evidence of intent, no such explicit statement ofpurpose exists for Act 134. Defendant and Intervenors offer legislativecommittee minutes as evidence of the legislature's intent in enacting of Act134, but Plaintiff finds the lack of a preamble evidence of an improperpurpose and opposes the use of the committee minutes based onLouisiana's own statute proscribing this use. See La. R.S. 24:177(E)(3) (“Committee minutes ... shall not constitute proof or indicia of legislative

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intent.”). Yet it is the purpose and effect of the statute that are paramount,not the absence of a legislative preamble evidencing the legislature's intentor the presence of legislative committee minutes. The Court finds that inthis case the text and context of the law alone sufficiently demonstrate thepurpose and effect of the law. See La. R.S. 24:177(B)(1)(“The text is thebest evidence of legislative intent.”)." (footnotes omitted).

(d) Louisiana Federation of Teachers v. State, 118 So.3d 1033 (La. 2013) -footnote 40 - "This conclusion is buttressed by an examination of the“Keyword” and “One–Liner” the legislature annexed to the bill. Thelegislative glossary defines the “Keyword” as the “[g]eneral subject of [a]bill or resolution that appears above the heading.” See www.legis.la.gov/legis/Glossary. The “One–Liner” is a “phrase or sentence thatdescribes a bill or resolution. It appears on the bill or resolution after thekeyword and before the heading ... and may be referred to as ‘summary.’ ”Id. While not constituting a part of the proposed law, the keyword andone-liner are intended “to provide the members of the legislature withgeneral indicia of the content of the bill.” La. R.S. 24:177(E)(1). In thiscase, the keyword and one-liner initially appearing in HB 976 recited:“SCHOOLS/CHOICE: Provides relative to the Student Scholarships forEducational Excellence Program, parent petitions for certain schools to betransferred to the RSD, charter school authorizers, and course providers.”

(e) In Billeaudeau v. Opelousas General Hospital Authority, 218 So.3d 513(La. 2016), the Louisiana Supreme Court stated regarding R.S. 24:177 thatwith "all due deference to our legislative colleagues, we note while theenactment of laws falls within the sound discretion of the legislativebranch, interpretation of those laws fall within the province of the judicialbranch. Unwired Telecom Corp. v. Parish of Calcasieu, 03 0732, p. 16(La. 1/19/05), 903 So.2d 392, 404 ("The function of statutoryinterpretation and the construction given to legislative acts rests with thejudicial branch of government.... [I]nterpreting the law is the designatedfunction of the judiciary, not the Legislature."). We have also long held:"[i]n many cases, the legislative history of an act and contemporaneouscircumstances may be helpful guides in ascertaining legislative intent."Exxon Pipeline Co. v. Louisiana Public Service Com'n, 98 1737, p. 9 (La.3/2/99), 728 So.2d 855, 860." (p. 517, footnote 4).

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(f) Some courts are still making reference to legislative materials that R.S.24:177 and other statutes have clearly expressed are not appropriateindicia of legislative intent, such as:

resume digests (which is not only a digest prepared by staff but is alsousually a post-enactment document prepared after a legislative session hasended) and digests - See, e.g., South Lafourche Levee Dist. v. Jarreau, 192So.3d 214 (La. App. 1 Cir. 2016), affirmed in part and reversed in part bySouth Lafourche Levee District v. Jarreau, 217 So.3d 298 (La. 2017);Lewis v. Louisiana Dept. of Public Safety and Corrections, 2017 WL2403016 (Not Reported in So.3d) (La. App. 1 Cir. 2016) at footnote 10;Burrell v. State, 184 So.3d 246 (La. App. 2 Cir. 2016), writ denied, 206So.3d 879 (La. 2016); Kelleher v. Custom Homes By Jim Fussell, Inc.,2016 WL 3127395 (Not Reported in So.3d) (La.App. 1 Cir. 2016); CapitalCity Press, L.L.C. v. Louisiana State University System Bd. of Sup'rsCourt of Appeal of Louisiana, 168 So.3d 727 (La. App. 1 Cir. 2014), Peckv. Richmar Construction, Inc, 144 So.3d 1042 (La. App. 1 Cir. 2014);State v. Lacour, 117 So.3d 203 (La. App. 3 Cir. 2013); and Retired StateEmployees Association v. State, 119 So.3d 568 (La. 2013).

[NOTE: Digests, one-liners, etc. are prepared by staff and are not subjectto committee or floor amendment.]

(8) Legislative committee meetings and floor debates are broadcast over the Internet,and are archived and can be viewed at the Legislature's web site, www.legis.la.govDespite statements that such records are not "official", the archived broadcastsstill constitute part of the "legislative history" available from the legislature. Giventheir completeness and ease of access, courts have been willing to utilize them inorder to consider committee discussion and floor debate in reviewing legislativehistory----although such consideration is (or should be) still subject to the sameconcerns as to what "discussion and debate" should be deemed adequate in fact tobe deemed appropriate "proof" of the "intent" of the entire voting body of bothhouses of the Legislature.

See, for example, the cases discussed above in this outline concerning statementsby legislators.

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V. FIVE FAST THOUGHTS ABOUT DRAFTING LEGISLATION:

A. Like the drafting of pleadings and contracts, security instruments, wills, trusts, andother documents, the drafting of legislation is a specialized form of legal writing--but with additional and more difficult considerations.

(1) Knowledge of substantive content alone is a necessary but not sufficient basis forgood legislative draftsmanship.

(2) Legislation is an authoritative policy document ultimately resulting in a legaldocument. It is subject not only to political and policy considerations but also toan enactment process having its own constitutional, procedural, jurisprudential,and style requirements. Regardless of merit or substance, failure to satisfymandatory procedural constitutional requirements can alone void legislation.

(3) Multiple audiences (public, legislative, agencies, and courts) often viewlegislation from differing perspectives with differing interpretation considerations.

(4) Others Said It Better:

(a) "One reason why it is hard to teach people how to draft is that like allwriting it looks easy. There is one thing upon which almost everyoneprides himself, and that is his writing. This is especially true of lawyers.Not only do they underestimate the difficulties of writing but they tend tothink of themselves as individually accomplished. It is hard to sell a man anew suit when he considers himself already well accoutered.

* * *I think that it is***accurate to say that legislative drafting is the mostdifficult form of legal drafting. The basic problems are the same, butlegislative problems are technically more complicated and socially moreimportant."

* * *Although the draftsman is not himself a policy maker, he can help educatethe client so that the client can make informed decisions. In doing this thedraftsman must avoid two extremes. On the one hand, he must avoid beinga mere legal stenographer or short order cook. On the other, he must not bean officious meddler in policy."

- Dickerson, How to Write A Law, 31 Notre Dame Lawyer14 (1955), quoted in Legislation: Cases and Materials,Nutting and Dickerson (1977).

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(b) "Reed Dickerson in his book The Fundamentals of Legal Drafting(formerly entitled The Fundamentals of Legislative Drafting) defines legaldrafting as "the crystallization and expression in definitive form of a legalright, privilege, function, duty or status". This is also an excellentdefinition of legislative drafting as it embodies the twin aspects of suchdrafting: the conceptual aspect, in which the drafter ascertains and perfectsthe concepts to be employed in his draft, and the literary aspect, in whichthe drafter selects the best means of expressing those concepts. Draftingis, as Reed Dickerson says, first thinking and second composing." -Legislative Drafting in Hong Kong, Law Drafting Division, Department ofJustice

(c) "Legal drafting is legal thinking made visible." Robert Dick, LegalDrafting (Carswell Toronto 1972).

(d) "The legal drafter must write for unidentified foe as well as known friend.The drafter must write so that not only a person reading in good faithunderstands but a person reading in bad faith cannot misunderstand." ----Introduction, Oregon Bill Drafting Manual, citing numerous sources forthe introduction, including Reed Dickerson's excellent books LegislativeDrafting (1954) and The Fundamentals of Legal Drafting (1965).

B. Only text is law.

(1) "C.C. Art. 2. Legislation Legislation is a solemn expression of legislative will.

C.C. Art. 9. Clear and unambiguous law When a law is clear and unambiguous and its application does not lead to

absurd consequences, the law shall be applied as written and no furtherinterpretation may be made in search of the intent of the legislature.

R.S. 1,§4. Unambiguous wording not to be disregarded When the wording of a Section is clear and free of ambiguity, the letter of

it shall not be disregarded under the pretext of pursuing its spirit."

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(2) Wishful thinking aside, the simple and often apparently inconvenient truth is that"concepts", speeches, media reports, quotes from interested parties, statementsregarding the "purpose" or "what I'm trying to do here", committee testimony,arguments pro and con, digests and similar explanations, and committee and floordebates, are not law.

(a) The only truly accurate answer to the question of "What does the bill do?"is "The bill does what it says it does" (a/k/a the "text").

(b) If not clear from the text, assumptions during the political process of howlegislation will be "interpreted" and implemented (a/k/a "How will thiswork in real life?") can be problematic. The Legislature may get to writethe text it wants (and it will be assumed the wording of text was chosendeliberately and with knowledge of its meaning and legal effect), but theLegislature does not get to interpret what it writes. Interpretation is thesole province of the judiciary.


(a) "I thought this was a good bill until I read it." - Anonymous Legislator.

(b) "Words are the only lasting product of the Legislature. Not all wordsuttered during the legislative process have the same dignity. The StateConstitution does not convene the Legislature in regular session for 60days every year to conduct studies, publish reports or analyses, or writecorrespondence, but rather to write, by a formal process, the words thatgovern people’s lives. These words, embodied in law, are the commandsof the sovereign. They control what we may do with our property and canconstrain our liberty. All people are expected to abide by these words, andsome must even take an oath to uphold them.

We are governed by this law and not by men. The king can expectus to obey his words, but not to read his mind. If we are to remaingoverned by law, we must find its meaning in its chosen words—not in theminds of its framers or in the creative minds of its readers. To this end,those words must be few and well chosen. Legal writing must not forsakegood English. Obedience to proper grammar and usage helps secure ourrule of law.

Drafting laws is exacting and tedious work for a lawyer. Itdemands much drudgery—reading and writing, rereading and rewriting. Inthe words of Daniel Webster:

“Accuracy and diligence are much more necessary to a lawyer thangreat comprehension of mind, or brilliance of talent. His businessis to refine, define, split hairs, look into authorities, and compare

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cases. A man can never gallop over the fields of law on Pegasus,nor fly across them on the wing of oratory. If he would stand onterra firma, he must descend. If he would be a great lawyer, hemust first consent to become a great drudge.”

- Robert L. Kennedy, III, Director, 1984-2002 Legal Research and Drafting Services Preface, Florida Senate Manual for DraftingLegislation

C. Speed is the enemy of accuracy.

(1) There is no magic button on the computer (or the drafter) to solve last-minutedrafting issues.

(2) Law is legislation. Legislation is words. Drafting legislation is writing. Goodwriting is rewriting. (Who wants their first draft of anything to have binding legalforce and effect?)

(3) Goals of clarity and specificity:

(a) The text of the legislation does what was intended without needing specialknowledge or assumptions.

(b) Further, such text does only what was intended.

(c) Whether or not the reader agrees with its effects, the text of the legislationis read the same way by most who read it.

(4) The faster the drafting, the higher the probability the text will contain mistakesand ambiguous language and create unintended consequences. There are noexceptions to this rule.

(5) Remember that all text is treated the same by the courts, whether it was draftedover three months, three weeks, three days, or three minutes. (This can be adisconcerting consideration.)

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(a) Justice Louis Brandeis - "There is no great writing, only great rewriting."

(b) Mark Twain:

(i) "The difference between the almost right word & the right word isreally a large matter--it's the difference between the lightning bugand the lightning."

(ii) "Thunder is good, thunder is impressive; but it is lightning thatdoes the work."

(c) Erasmus - "Be careful that you write accurately rather than much."

D. If it was that important, why didn't you tell me earlier?

(1) Especially applicable to committee and floor amendments.

(2) See A-C above.

(3) See E below.

(4) Others Said it Better:

H.G. Wells - "No passion in the world is equal to the passion to alter someoneelse's draft."

E. The earlier a drafting issue can be resolved, the better. As in other endeavors: (1) thebest time to solve a problem is before it happens, and (2) preventive maintenance isusually faster, easier, and cheaper than aftermath cleanup/repair.

The best time to solve a drafting problem is before it leaves the drafter. An additionalconsideration (or problem) in solving legislative drafting questions is the law ofescalating involvement of others:

A drafting problem caught and solved by the drafter takes one person. Adrafting problem caught and solved by a drafter and reviewer takes two people. Adrafting problem caught and solved by administrative proofing takes severalpeople. A drafting problem caught and solved by a legislative committee takesapproval of the committee and acceptance by the full body of the committee'srecommendation. A drafting problem caught and solved by floor amendment takesat least a majority vote of the full body. A drafting problem caught and solved by

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the other house takes passage of the bill in the other house and concurrence in thehouse of origin to the changes, or appointment of a conference committee andadoption of the conference committee report by both houses. A drafting problemcaught and solved by the governor requires veto of the entire bill, unless the bill issubject to line item veto. A drafting problem solved by next year's legislaturetakes a bill successfully completing the entire process, including all of the above.A drafting problem not otherwise solved by the legislature takes the entire judicialprocess to resolve.

And remember, if the judicial resolution is not what was wanted, theabove process starts all over again with new legislation.

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VI. SELECTED RECENT ARTICLES OF INTEREST:

"WHY THE LEGISLATURE NEEDS LAWYERS", Wyoming Lawyer, August, 2017.

"WHY YOU SHOULD CONSIDER SERVING IN THE KANSAS LEGISLATURE", Journal of the Kansas Bar Association, July/August, 2017.

Michelli, CAN THE LEGISLATURE “VALIDATE” A PREVIOUSLY ENACTEDSTATUTE?, 48 University of the Pacific Law Review 825 (2017).

Entrikin and Neumann Jr., TEACHING THE ART AND CRAFT OF DRAFTINGPUBLIC LAW: STATUTES, RULES, AND MORE, 55 Duquesne Law Review 9(Winter 2017)

Medows, A BEGINNER'S GUIDE TO LEGISLATIVE DRAFTING, Harvard Journal onLegislation Online Commentary (2016) -

http://harvardjol.com/2016/10/24/a-beginners-guide-to-legislative-drafting/

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http://harvardjol.com/2016/10/24/a-beginners-guide-to-legislative-drafting/

VII. CLOSING THOUGHTS AND QUOTES:

A. Robert Graves and Alan Hodge, The Reader Over Your Shoulder: A Handbook forWriters of English Prose (1979):

"From the Minutes of a Borough Council Meeting:

Councillor Trafford took exception to the proposed notice at the entrance of South Park:"No dogs must be brought to this Park except on a lead." He pointed out that this orderwould not prevent an owner from releasing his pets, or pet, from a lead when once safelyinside the Park.

The Chairman (Colonel Vine): What alternative wording would you propose, Councillor?Councillor Trafford: "Dogs are not allowed in this Park without leads."

Councillor Hogg: Mr. Chairman, I object. The order should be addressed to the owners,not to the dogs.

Councillor Trafford: That is a nice point. Very well then: "Owners of dogs are notallowed in this Park unless they keep them on leads."

Councillor Hogg: Mr. Chairman, I object. Strictly speaking, this would keep me as adog-owner from leaving my dog in the back-garden at home and walking with Mrs. Hoggacross the Park.

Councillor Trafford: Mr. Chairman, I suggest that our legalistic friend be asked to redraftthe notice himself.

Councillor Hogg: Mr. Chairman, since Councillor Trafford finds it so difficult to improveon my original wording, I accept. "Nobody without his dog on a lead is allowed in thisPark."

Councillor Trafford: Mr. Chairman, I object. Strictly speaking, this notice would preventme, as a citizen, who owns no dog, from walking in the Park without first acquiring one.

Councillor Hogg (with some warmth): Very simply, then: "Dogs must be led in thisPark."

Councillor Trafford: Mr. Chairman, I object: This reads as if it were a general injunctionto the Borough to lead their dogs into the Park.

Councillor Hogg interposed a remark for which he was called to order; upon hiswithdrawing it, it was directed to be expunged from the Minutes.

The Chairman: Councillor Trafford, Councillor Hogg has had three tries; you have hadonly two ...

Councillor Trafford: "All dogs must be kept on leads in this Park."The Chairman: I see Councillor Hogg rising quite rightly to raise another objection. May Ianticipate him with another amendment: "All dogs in this Park must be kept on the lead."

This draft was put to the vote and carried unanimously, with two abstentions."

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B. "It may be well to warn [legislative counsel], that in [their] case virtue will, for the mostpart, be its own reward, and that after all the pains that have been bestowed on thepreparation of a Bill, every Lycurgus and Solon sitting on the back benches will denounceit as a crude and undigested measure, a monument of ignorance and stupidity. Moreover,when the Bill has become law, it will have to run the gauntlet of the judicial bench,whose ermined dignitaries delight in pointing out the shortcomings of the legislature inapproving such an imperfect performance."

----- Lord Thring, Introduction in Practical Legislation, 2d ed (London: 1902), at9, cited in Carter, " 'High-quality' Legislation - (How) Can Legislative CounselFacilitate It?", The Loophole - November 2011 (Australian Office ofParliamentary Counsel).

C. "It described the statute, in part, as '24 lines of unrelenting abstruseness consisting,remarkably, of the sum total of 307 words and a mere one period, a punctuation mark setout as a lone sentinel facing odds similar to that of the Spartans at the Battle ofThermopylae.' "

----- Trevor, FROM OSTRICHES TO SCI-FI: A SOCIAL SCIENCE ANALYSISOF THE IMPACT OF HUMOR IN JUDICIAL OPINIONS, 45 U. Tol. L. Rev.291 (Winter 2014), at footnote 154 in discussing a dissenting opinion in an Ohiocourt.

D. "Last, but not least, a thorough knowledge and understanding of the constitutional andstatutory limitations on the powers of the legislature, and of the pertinent judicialdecisions, will insure the enactment of laws which will be immune to constitutionalattack and clearly enforceable."

---- Carlos E. Lazarus, "Legislative Bill Drafting", LSA, Vol. 1, page xxxix

The comments expressed in this outline are solely those of the author, and do not constitute anyformal or official policy or interpretation of the Louisiana Legislature or any house or othercomponent thereof.

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