2021 recent developments in legislative law & …

2021 RECENT DEVELOPMENTS IN LEGISLATIVE LAW & PROCEDURE

Jerry G. Jones1

TABLE OF CONTENTS

I. EVEN-YEAR REGULARSESSIONS...........................................................................................................................3

II. VETOSESSIONS...........................................................................................................................6

III. SPECIALSESSIONS.........................................................................................................................19

IV. SELECTED NEW LEGISLATION...................................................................................30

V. SELECTED RECENT CASES..........................................................................................38

VI. SELECTED ARTICLES OFINTEREST.........................................................................................................................70

VII. CLOSING THOUGHTS ANDQUOTES............................................................................................................................71

1 jgjonesbr@gmail. All rights reserved, November, 2021.

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mailto:[email protected].

i 2022 Regular Session - To convene at noon on Monday, March 14, 2022.Final adjournment no later than 6:00 p.m. on June6, 2022. (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. EVEN-YEAR REGULAR SESSIONS:

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

A. 2022 Regular Session - Convenes at noon on Monday, March 14, 2022. Finaladjournment no later than 6:00 p.m. on June 6, 2022.

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 © 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-seventhlegislative day or the eighty-second calendar day, whichever occurs first, except by a

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

favorable 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 statewide

political 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 theproclamation. The session shall be limited to the number of days stated therein, which

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shall not exceed thirty calendar days.(C) Emergency Session. The governor may convene the legislature in

extraordinary 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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II. VETO SESSIONS:

A. In 2021, veto session convened on Tuesday, July 20, 2021, and adjourned on Wednesday,July 21, 2021. No vetoes overridden.

B. La. Const. Art. 3,§18 - “§18. Gubernatorial Action on Bills; Sign, Failure to Sign, Veto;Veto Session

Section 18.(A) Gubernatorial Action. If the governor does not approve a bill, hemay veto it. A bill, except a joint resolution, shall become law if the governor signs it orif he fails to sign or veto it within ten days after delivery to him if the legislature is insession on the tenth day after such delivery, or within twenty days after delivery if thetenth day after delivery occurs after the legislature is adjourned.

(B) Veto Message. If the governor vetoes a bill, he shall return it to thelegislature, with his veto message within twelve days after delivery to him if thelegislature is in session. If the governor returns a vetoed bill after the legislatureadjourns, he shall return it, with his veto message, as provided by law.

(C) Veto Session. (1) A bill vetoed and returned and subsequently approved bytwo-thirds of the elected members of each house shall become law. The legislature shallmeet in veto session in the state capital at noon on the fortieth day following finaladjournment of the most recent session, to consider all bills vetoed by the governor. Ifthe fortieth day falls on Sunday, the session shall convene at noon on the succeedingMonday. No veto session shall exceed five calendar days, and any veto session may befinally adjourned prior to the end of the fifth day upon a vote of two-thirds of the electedmembers of each house.

(2) No veto session shall be held if a majority of the elected members of eitherhouse declare in writing that a veto session is unnecessary. The declaration must bereceived by the presiding officer of the respective houses at least five days prior to the dayon which the veto session is to convene.” (emphasis added)

C. La. Const. Art. 4, §5(G) - “(G) Item Veto.(1) Except as otherwise provided by this constitution, the governor may veto any

line item in an appropriation bill. Any item vetoed shall be void unless the veto isoverridden as prescribed for the passage of a bill over a veto. (2) The governor shallveto line items or use means provided in the bill so that total appropriations for the yearshall not exceed anticipated revenues for that year.”

D. La. R.S. 24:10 - “§10. Vetoed bills; return by the governor; veto sessionA. A bill, except a joint resolution, shall become law if the governor signs it or if

he fails to sign or veto it within ten days after delivery to him if the legislature is insession, or within twenty days if the legislature is adjourned.

B. If the governor does not approve a bill, he may veto it. When he vetoes a bill,he shall return it to the legislature, with his veto message stating his reasons for the veto,within twelve days after delivery to him if the legislature is in session.

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C. Not later than twelve o'clock midnight of the twenty-third calendar day afterthe sine die adjournment of each session of the legislature, the governor shall transmit tothe secretary of the Senate and the clerk of the House a statement of all vetoed bills,which have not previously been returned to the legislature in session and shall at thesame time return each such vetoed bill to the chief clerical officer of the house of origin. Such statement shall contain the bill number and title of each such vetoed bill and theveto message for each stating the reasons for the veto of the particular bill. No later thanmidnight of the second day after receipt of such statement the secretary of the senate andthe clerk of the house shall transmit by certified or registered mail, or by any otherreceipted written means, to each member of their respective houses a copy of thegovernor's statement and a form for declaration by the member that a veto session forreconsideration of the listed vetoed bills is not necessary. The form for such declarationshall contain a statement that the undersigned member finds that a veto session toreconsider the bills listed in the governor's statement is not necessary and shall alsoprovide a designated place for the signature of the member responding.

D. Upon receipt of the copy of the governor's statement and the declaration form,each legislator who finds that a veto session to reconsider the bills listed in the governor'sstatement is not necessary shall sign the form for such declaration and shall immediatelyreturn such signed form to the presiding officer of the house of which he is a member. Each presiding officer shall note the date and hour of receipt of each signed form hereceives and shall tabulate the number of members who have by return of such signedform declared that a veto session is not necessary. Any other written declaration by amember that such a session is not necessary which is received by one of the presidingofficers, shall be treated in the same manner as those received on the form provided andshall be included in such tabulation. No declaration received after twelve o'clockmidnight of the thirty-fifth calendar day after sine die adjournment of the legislature shallbe counted and declarations received after that time shall be null and void.

E. The presiding officers shall jointly transmit to each member of the legislaturethe results of the tabulation of the declarations returned by the members of the respectivehouses together with an announcement that the veto session is or is not to be held and thedate and time such session shall convene if it is to be held. No veto session shall be heldif a majority of the elected members of either house have declared in writing that a vetosession is unnecessary.

F. Unless a majority of the elected members of either house has declared inwriting that a veto session is unnecessary, the legislature shall meet in veto session in thestate capital at noon on the fortieth day following final adjournment of the most recentsession, to consider all bills vetoed by the governor. If the fortieth day falls on Sunday,the session shall convene at noon on the succeeding Monday. No veto session shallexceed five calendar days, and any veto session may be finally adjourned prior to the endof the fifth day upon the vote of two-thirds of the elected members of each house.

G. A law enacted with the approval of a vetoed bill by two-thirds of the electedmembers of each house during a veto session shall take effect on the sixtieth day afterfinal adjournment of the session in which it was originally finally passed by both houses,

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unless such Act contains a different effective date. If the Act contains a differenteffective date, it shall become effective on said date, unless the date is prior to the time ofapproval by both houses during a veto session by the required vote, in which case it shallbecome effective upon such approval. “

E. Op.Atty. Gen. No. 91-432 (Aug., 1991) - reviewing Art. 3, Sec. 18 and R.S. 24:10 andconcluding that "The governor has 20 days within which to act on a bill where it wasdelivered to him prior to sine die adjournment of the legislature if the legislature is notstill in session ten days after delivery of the bill."

F. Op.Atty.Gen. No 21-0082 (July 16, 2021) - reviewing Art. 3, Sec. 18 and R.S. 24:10 andconcluding that in “a legislative veto session, the Legislature has the authority to considera veto override of all bills that were vetoed by the Governor, regardless of the timing ofhis veto. In addition, the Legislature may consider overriding any of the Governor's lineitem vetoes of an appropriation bill during a legislative veto session.”

From opinion:

“1. The Legislature has the authority to consider a veto override of all bills that werevetoed by the Governor, whether they were vetoed before or after adjournment of theregular legislative session.

Louisiana Constitution article III, § 18(C) states that "[t]he legislature shall meet

in veto session in the state capital at noon on the fortieth day following final adjournmentof the most recent session, to consider all bills vetoed by the governor."2 Wheninterpreting this constitutional provision, we utilize the same rules of interpretation as wedo other laws and instruments.3 The Louisiana Supreme Court has reiterated that "[i]t is afundamental principle of constitutional construction that when a provision is clear andunambiguous, and its application does not lead to absurd consequences, it must beinterpreted as written" without further search if its intent.4

Here, it is hard to imagine the words of the Constitution being any clearer or more

unambiguous. Louisiana Constitution article III, § 18(C) states that the Legislature shallmeet in veto session to consider all bills vetoed by the Governor. The Constitution doesnot make any distinction between a bill vetoed during a regular session and a bill vetoedafter the conclusion of the regular session. It simply says "all bills." Thus, during a vetosession, the Legislature may consider all bills that were vetoed by the Governor regardlessof the timing of his veto.

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We must also address La. R.S. 24:10, which provides the process for distributingballots in which legislators may declare that a veto session is unnecessary. This statuterequires that the Governor, no later than the twenty-third calendar day after adjournmentof the regular session, transmit to the Clerk of the House and Secretary of the Senate astatement of all vetoed bills, which have not been previously returned while theLegislature was in session (i.e., bills that were vetoed post adjournment). The Clerk of theHouse and Secretary of the Senate must then transmit to their respective members a copyof the Governor's statement and a form in which legislators may declare that a vetosession is unnecessary. The statute requires this form "contain a statement that theundersigned member finds that a veto session to reconsider the bills listed in thegovernor's statement is not necessary." Thus, one could infer that only those bills listed inthe Governor's statement (i.e., those that were vetoed after adjournment) are to beconsidered by the member when deciding whether or not a veto session is necessary. Inthis interpretation of the statute only those bills vetoed after adjournment are eligible tobe considered in a veto session. We do not think that such an inference can be drawn.

As with any statute, La. R.S. 24:10 must be presumed constitutional. Even where

a statute may be susceptible to multiple meanings, it is to be reasonably interpreted, ifpossible, as to preserve its constitutionality. The Constitution, nonetheless, "is thesupreme law of this state to which all legislative instruments must yield."

With those principles in mind, we must construe the language in La. R.S.

24:10(C) as one that conveys information to legislators, not to restrict which bills may beconsidered in a veto session. The former would be constitutional, while the latter wouldnot. Were one to interpret La. R.S. 24:10(C) to only allow those bills listed in theGovernor's post- adjournment statement to be considered in a veto session, it wouldviolate La. Const. art. III, § 18(C), which requires that the Legislature consider in a vetosession all bills vetoed by the Governor.

The more reasonable interpretation of La. R.S. 24:10(C) is that it merely conveys

to the legislators which bills the Governor vetoed after the regular session adjourned andthe reasons for those vetoes. The Governor need not include in his statement those billswhich were vetoed and returned while the Legislature was in session because,presumably, the Legislature is already aware of those vetoes. Similarly, the form sent tolegislators whereon they declare whether a veto session is necessary need not includethose bills that were vetoed and returned while the Legislature was in session. TheLegislature, again, presumably already knows that those bills have been vetoed and theGovernor's reason(s) for doing so.

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Moreover, La. R.S. 24:10(F) mirrors the language of La. Const. art. III, § 18(C),which states that "the legislature shall meet in veto session in the state capital at noon onthe fortieth day following final adjournment of the most recent session, to consider allbills vetoed by the governor."11 Thus, in light of La. Const. art. III, § 18(C), La. R.S.24:10(C) must be construed to provide legislators notice of post-session vetoes, not torestrict which bills they may consider in a veto session.” (footnotes omitted).

[COMMENT AND QUESTIONS:

The question of what vetoes can be considered in a veto session turns on themeaning of the phrase “all bills vetoed by the governor” in Art. 3, §18(C).

In Ocean Energy, Inc. v. Plaquemines Parish Government, 880 So.2d 1 (La.2004), rehearing denied, the Louisiana Supreme Court stated:

"The starting point in the interpretation of constitutional provisions is thelanguage of the constitution itself. East Baton Rouge Sch. Bd. v. Foster,02–2799, p. 15 (La.6/6/03), 851 So.2d 985, 996. When a constitutionalprovision is plain and unambiguous and its application does not lead toabsurd consequences, its language must be given effect. Id. Unequivocalconstitutional provisions are not subject to judicial construction andshould be applied by giving words their generally understood meaning.Cajun Elec. Power Co-op. v. Louisiana Pub. Serv. Com'n, 544 So.2d 362,363 (La.1989) (on rehearing).

When the constitutional language is subject to more than onereasonable interpretation, it is necessary to determine the intent of theprovision. East Baton Rouge Parish Sch. Bd., 02–2799 at pp. 15–16, 851So.2d at 996. In seeking to ascertain constitutional intent, the same generalrules used in interpreting laws and written instruments are followed. EastBaton Rouge Parish Sch. Bd., 02–2799 at p. 16, 851 So.2d at 996. Whenconstruing an ambiguous constitutional provision, a court should ascertainand give effect to the intent of both the framers of the provision and of thepeople who adopted it; however, in the case of an apparent conflict, it isthe intent of the voting population that controls. Id.

In construing a constitutional provision, the courts may considerthe object sought to be accomplished by its adoption, and the evils soughtto be prevented or remedied, in light of the history of the times and theconditions and circumstances under which the provision was framed.Succession of Lauga, 624 So.2d 1156, 1160 (La.1993). Additionally, ifone constitutional provision addresses a subject in general terms, andanother addresses the same subject with more detail, the two provisionsshould be harmonized if possible, but if there is any conflict, the latter willprevail. Perschall v. State, 96–0322, p. 22 (La.7/1/97), 697 So.2d 240, 255.

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However, where the language of a constitutional prohibition makes its aimevident and unequivocal, courts need not consider the historical basis forthe prohibition and may not, by separately considering relatedconstitutional provisions, arrive at a construction that detracts from theeffectiveness or manifest meaning and purpose of the related provisions.Perschall, 96–0322 at p. 22, 697 So.2d at 256.

In Caddo–Shreveport Sales & Use Tax Com'n v. Office of MotorVehicles, 97–2233 (La.4/14/98), 710 So.2d 776, this court had the task ofinterpreting the constitution's specific delegation to local governments ofthe right to levy and collect sales and use taxes. After stating the generalrules of constitutional interpretation, the court stated, “In order to ascertainthe ordinary, usual, and commonly understood meaning of a word nototherwise defined in a constitution, courts generally look first to thedictionary definition.” Caddo–Shreveport Sales & Use Tax Com'n,97–2233 at p. 7, 710 So.2d at 776, 780 (citing 16 Am.Jur.2dConstitutional Law § 71 (1998).”

The Louisiana Supreme Court has further stated:

“In examining a law, language, words, and phrases are to be read in theircontext and to be accorded their generally prevailing meaning. City of NewOrleans, 05-2548 at p. 20, 986 So.2d at 17, citing La. C.C. art. 11; La. R.S. 1:3. Itis presumed that every word, sentence, or provision was intended to serve someuseful purpose, that some effect is to be given to each such provision, and that nounnecessary words or provisions were employed. City of New Orleans, 05-2548 atp. 20, 986 So.2d at 17, citing Moss, 05-1963 at p. 15, 925 So.2d at 1196; SultanaCorporation, 03-0360 at p. 9, 860 So.2d at 1119. As a result, courts are bound, ifpossible, to give effect to all parts of a statute and to construe no sentence, clause,or word as meaningless and surplusage if a construction giving force to, andpreserving, all words can legitimately be found. City of New Orleans, 05-2548 atp. 20, 986 So.2d at 17, citing Moss, 05-1963 at 15, 925 So.2d at 1196; St. MartinParish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 899-900, 33 So.2d671, 676 (1947).

Furthermore, a statute should be construed in such way as to reconcile, ifpossible, apparent inconsistencies so that each part is given effect. State v. Cazes,262 La. 202, 215-16, 263 So.2d 8, 12 (1972). Since the meaning is to bedetermined from a general consideration of the act as a whole, all parts,provisions, or sections must be read together; each must be considered withrespect to, or in the light of, all the other provisions, and construed in harmonywith the whole. Id. The intent as deduced from the whole will prevail over that ofa particular part considered separately. Id. Meaning should be given, if possible, toeach and every section, and the construction placed on one portion should not besuch as to obliterate another; so, in determining the meaning of a word, phrase, or

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clause, the entire statute is to be considered. Id. See also Israel v. City of NewOrleans, 130 La. 980, 985, 58 So. 850, 852 (1912) (“The meaning of a word orphrase may be ascertained by the meaning of other words or phrases with which itis associated.”). (footnotes and page numbers omitted) - Luv N' Care, Ltd. v.Jackel International Limited,____So.3d____, 2020 WL 4991642019-0749 (La.1/29/20).

In short, the phrase “all bills vetoed by the governor” cannot be properlyunderstood in isolation. Instead, it must read and construed together with the remainingprovisions of Art. 3, Section 18, and potentially other pertinent provisions of theconstitution.

Questions. For the phrase to be properly understood in light of pertinent laws, itwould seem that several related questions must first be directly addressed and analyzed.These related questions include the following:

(1) Does “all bills vetoed by the governor” also include every bill vetoed by thegovernor from previous sessions? [Few would argue this to be an acceptableinterpretation. Why? Because it seems too literal, to the point of absurdity. It makes moresense to apply time constraints in our interpretation of this phrase and limit “all” to billsvetoed in the current session. In previous sessions, there was an opportunity for thelegislature to take action that it did not take, and the time for that action has now passed.“Lost opportunity” limits the bills that can be considered in a veto session. Even iffarfetched, considering this question also indicates that the phrase “all bills vetoed by thegovernor” is perhaps less clear and unambiguous on its face than seems at first glance.]

Other questions arise:(2) Does “all bills vetoed by the governor” include bills timely returned during the

session for which an override attempt was made and failed?(3) Does “all bills vetoed by the governor” include bills timely returned during the

session for which an override attempt could have been made but was not?(4) If “all bills vetoed by the governor” should be read as totally inclusive of both

of the above, then what is the point of mandating time periods for action by the governorand return of bills during the session as set forth in Section 18 and R.S. 24:10, and alsomandating in Art. 3, Section 17(A) that “ A bill passed by both houses shall be signed bythe presiding officers and delivered to the governor within three days after passage.”?

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(a) An additional consideration is the language of La. Const. Art. 3, Section1(B), which states: “(B) Continuous Body. The legislature is a continuousbody during the term for which its members are elected; however, a bill orresolution not finally passed in any session shall be withdrawn from thefiles of the legislature.” If a bill has been vetoed and timely returnedduring a session and no override has been made when the session ends, hasthat bill actually been “finally passed”?

[If a vetoed bill has been properly returned to the legislature duringthe session, then is further action required for “passage”? If“passage” means approval by the full body, what is the differencebetween “passage” and “override”? Is “override” or“reconsideration” simply repassage with a specific voterequirement for reenactment? Note that the language of Article 4,Section 5(G) concerning line item vetoes provides, “Any itemvetoed shall be void unless the veto is overridden as prescribed forthe passage of a bill over a veto.” (emphasis added).]

(b) In considering all of the above questions, review of the previous 1921constitutional language and procedures concerning veto is appropriate. Sois review of the 1973 Louisiana constitutional convention transcriptsregarding the present constitutional language discussed above (especiallyVol. 5, pages 214-234 and pages 445-451, and Vol. 9, pages 2509 and2514-2516). Regarding vetoed bills, see also House Rule 8.22 and SenateRule 10.18. Discussing the return of vetoed bills by the governor andaction by the legislature under previous constitutional requirements, seefor example Cleveland v. Martin, 29 So.2d 516 (La. App. 1 Cir. 1947),rehearing denied, writ denied.

See also (i) State ex rel. Moore v. Blankenship, 217 S.E.2d 232, 158W.Va. 939 (1975), with the West Virginia Supreme Court of Appealsconcluding that a constitutional provision stating “until the budget bill hasbeen finally acted upon by both houses” contemplates passage by bothhouses, signature or veto by the governor, and any subsequent action bythe legislature to override the veto; it does not contemplate the merepassage of the budget bill by both houses; and (ii) Pestka v. State, 493S.W.3d 405 (Supreme Court of Missouri, en banc 2016), concluding thatunder state constitutional provisions the Senate's override of the governor'sveto was untimely, and that the purpose of the veto session was to considerlate-vetoed bills, rather than bills that were vetoed earlier.

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(5) Finally, another additional question. How many “bites at the apple” does thelegislature really get in attempting to override a veto? See below.

In Burstein v. Morial, 438 So.2d 554 (La. 1983), not discussed in the AttorneyGeneral’s Opinion, the Louisiana Supreme Court, with three dissents, held that the NewOrleans home rule charter did not permit more than one attempt by the city council tooverride the mayor's veto. The Court stated:

“First, the relators argue that because the Charter does not expressly

prohibit more than one attempt to override the Mayor's veto, the Council may takeas many votes as it desires in an attempt to muster the two-thirds majorityrequired to override, so long as the votes are taken at one of two prescribedregular meetings and in accordance with the Council's rules, or during asuspension of the rules. Relators base this argument on Section 3-113(3) whichprovides:

Ordinances vetoed by the Mayor shall be presented by the Clerk to theCouncil at its next regular meeting and should the Council then or at itsnext regular meeting, adopt the ordinance by an affirmative vote oftwo-thirds of all its members, it shall become law.1

The inevitable consequence under relators' theory is that the Council

would have an indefinite number of opportunities to override a Mayor's veto ofany particular ordinance. By suspending or changing its rules, the Council couldtake several votes during each of the two regular meetings. Moreover, the Councilcould prolong each such meeting for more than one day by recessing oradjourning from day to day. Thus, the logical result of relators' interpretationwould permit the Council an indefinite number of attempts to override theexecutive veto.

Although we agree that, when read in a vacuum, section 3-113(3) may beinterpreted as relators propose, we also find that the section reasonably may beinterpreted in isolation to provide for but one attempt to override a Mayor's vetoduring either of two regular meetings of the City Council. Furthermore, when weconsider the probable source, history, and purpose of all of the Charter provisionspertaining to the adoption of ordinances, we conclude that the framers and voterswho adopted the Charter intended for there to be only one attempt to override aMayor's veto.

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The City Charter's design for the separation of powers and provisions formaintaining a balance between the legislative and executive branches is clearlybased on our federal constitution. The similarity of the basic governmentalstructures, presentment clauses, and qualified veto procedures set forth in the twodocuments is too consistent to be coincidental. Only a brief survey of the federalconstitutional convention's history indicates that these features were selected fromamong a wide variety of other conceivable devices which were proposed andrejected. See, A.R. Serven, The Constitution and the "Pocket Veto" 7N.Y.U.L.Rev. 495 (1929).

Accordingly, we find instructive the United States Supreme Court's

description of the purposes and reasons for the presentment clause and qualifiedveto in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).Art. I, section 7, clause 2 of the federal Constitution gives the President animportant but qualified role in the law enacting process. It requires that all bills bepresented to the President for his approval or veto. Presentment to the President*558 and the presidential veto were considered so imperative that the draftsmentook special pains to assure that these requirements could not be circumvented.The President's role in the lawmaking process also reflects the Framers' carefulefforts to check whatever propensity a particular Congress might have to enactoppressive, improvident, or ill-considered measures. The President's veto role inthe legislative process was described later during public debate on ratification:

It establishes a salutary check upon the legislative body calculated to guardthe community against the effects of faction, precipitancy, or of anyimpulse unfriendly to the public good, which may happen to influence amajority of that body.... The primary inducement to conferring the powerin question upon the executive, is to enable him to defend himself; thesecondary one is to encrease the chances in favor of the community,against the passing of bad laws, through haste, inadvertence, or design.The Federalist No. 73, at 458 (J. Cooke ed. 1961) (A. Hamilton).

See also Okanogan v. United States, 279 U.S. 655, 678, 49 S.Ct. 463, 466, 73L.Ed. 894 (1929); Myers v. United States, 272 U.S. 52, 123, 47 S.Ct. 21, 27, 71L.Ed. 160 (1926). The Court also has observed that the Presentment Clauses servethe important purpose of assuring that a "national" perspective is grafted on thelegislative process:

The President is a representative of the people just as the members of theSenate and of the House are, and it may be at some times on some subjectsthat the President elected by all the people is rather more representative ofthem all than are the members of either body of the legislature whoseconstituencies are local and not countrywide....

Myers v. United States, supra, 272 U.S., at 123, 47 S.Ct. at 27. INS v. Cadha, 103 S.Ct. 2782.

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In similar fashion, the framers of the City Charter provided that every act of theCouncil which is to become law shall be by ordinance, Section 3-111, that everyordinance adopted by the Council shall be presented to the Mayor, Section3-113(1), and that the Mayor may prevent the ordinance from becoming law byhis veto, Section 3-113(2), although any veto is subject to the prescribedlegislative override. Sections 3-113(3) and (4).

We believe that this scheme strikes a careful and deliberate balance

between the executive and legislative powers that would be seriously underminedif either were permitted repeated attempts to thwart the other. Implicit in theCharter is the intention that each branch be given one full and fair opportunity tooverrule the other. The Mayor is given one ten day period to consider anordinance and a single veto with which to prevent a particular ordinance frombecoming law. By the same token, the Council is given two regular meetings toreconsider a vetoed ordinance and a single attempt to override a veto. TheFramers could not have intended to restrict the Mayor to one vote to veto, whileaffording the Council an unspecified number of voting opportunities to overridean executive veto. This would confound the Mayor's important role in thelawmaking process and unduly qualify the utility of the veto as a defense oflegitimate executive power and as a check against the passing of bad lawsthrough haste, inadvertence or design.

Our interpretation of the charter is consistent with the Council's previous

construction, judging from its rules and past practices.Rule 45 provides:

Ordinances returned with the disapproval of the Mayor shall immediatelystand as reconsidered. The Clerk shall enter the objections of the Mayorthereto at large upon the Journal and the Council shall proceed to considerthe question:

'Shall the Ordinance pass, the objection of the Mayor thereto notwithstanding.'The vote shall be taken by yeas and nays and entered upon the Journal. If *559two-thirds of all the members vote to pass the ordinance, the presiding officershall certify the fact thereon over his signature.

Rule 40 provides:A vote or question may be reconsidered at any time during the samemeeting, or at the first regular or special meeting held thereafter.A motion for reconsideration, having been once made and decided in thenegative, shall not be renewed, nor shall a motion to reconsider bereconsidered.

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These rules clearly provide that a vetoed ordinance stands as a matter to bereconsidered, and that having been once decided in the negative, shall not berenewed or further reconsidered. There is no evidence that the Council has everbefore this case attempted to reconsider a vetoed ordinance twice or to deviatefrom the practice suggested by these rules.

We have found only one case in which a court decided this issue after

careful consideration of the history, purpose and function of the qualified veto. InSank v. City of Philadelphia, 8 Phila. 117, 119, 4Sank v. City of Philadelphia, 8Phila. 117, 119, 4 Brewster 133 (Pa.1871), the Pennsylvania Supreme Court atnisi prius, after noting that "its design was to protect minorities and to prevent orcorrect hasty or improvident legislation," concluded that "after a veto of thePresident of the United States, or of the Governor of the State, and a votereconsidering the bill had passed sustaining the veto that was a finality as to thatmeasure. The same result must, of course, follow upon a similar provision in thecity charter." Id. 8 Phila. at 119.Id. 8 Phila. at 119. The court graphically describedthe erosive action of multiple reconsiderations, and one possible source ofpersistent efforts to override a veto, as follows:

If a second, third, or more reconsiderations of a vetoed ordinance beallowed, it is plain that in the end the veto will be overruled, especially soif it provides for large expenditures of money. Parties hoping to have thehandling of it, by the aid of "Rings," a term descriptive of combinationswhich are known to infest legislative bodies everywhere in this country,will be very sure in the end to overthrow the veto, be it ever so wellgrounded in sound principles, or convincing in argument. This will be theinevitable result of repeated reconsiderations of the question, and thus agreat constitutional conservation of the rights of minorities, and safeguardagainst inconsiderate legislation, be set at naught.Id. 8 Phila. at p. 120Id. 8 Phila. at p. 120.

Courts in Massachusetts, New York and South Carolina have reached the

opposite conclusion. Board of Education of City School District of City of NewYork v. City of New York, 41 N.Y.2d 535, 394 N.Y.S.2d 148, 362 N.E.2d 948(1977); State ex rel. Coleman v. Lewis, 181 S.C. 10, 186 S.E. 625 (1936); KayJewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 27 N.E.2d 1(1940); Nevins v. City Council of City of Springfield, 227 Mass. 538, 116 N.E.881 (1917). These courts failed to consider, however, the source, history andfunction of the qualified executive veto and the very important role it must play inassuring that the legislative power is "exercised in accord with a single, finelywrought and exhaustively considered, procedure." INS v. Chadha, 103 S.Ct. at2784. These courts take the position that a legislative branch impliedly has thepower to reconsider vetoed legislation an infinite number of times unless there isan express constitutional or charter prohibition. We disagree, however, because a

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limitation upon the legislative power is clearly implied when a constitution orcharter expressly requires that all legislation is subject to presentment and aqualified veto by the executive. Moreover, the New Orleans city charter expresslyprovides that the legislative power of the council is "subject to the limitationshereinafter set forth." Those charter limitations include the express presentmentand veto clauses.

The weight of legislative precedents also supports the view that a vote onthe reconsideration of a vetoed bill cannot be reconsidered again. The UnitedStates Constitutional Provision regarding passage of a bill over a veto has beenconsistently interpreted *560 since 1844 to mean that a motion to reconsidercannot be applied to the vote on reconsideration of a bill returned with theobjections of the president. Jefferson's Manual and Rules of House ofRepresentatives § 106 (1973); Cannon's Procedure in House of Representatives468 (1963), 8 Cannon, Precedents of House of Representative § 2778 (1936); 5Hinds, Precedents of House of Representatives § 5644 (1907). See Board ofEducation v. City of New York, supra, 394 N.Y.S.2d at 158, 362 N.E.2d at 958(Cooke, J. dissenting). Parliamentary writers seem to have accepted this precedentas controlling and are agreed against a reconsideration of a vote once taken upon avetoed bill. Cushing's Law of Legislative Assemblies § 2388; Barclay's Digest190; Fish's Manual § 82; Spofford's Practical Manual 139; Wilson's DigestParliamentary Law § 2151 at 292. Contra, See Nevins v. City Council, 227 Mass.538, 116 N.E. 881, 885 (1917).” (emphasis added).

[Dissent. Justices Dixon, Calogero, and Lemmon dissented. The dissent arguedthat there was nothing in the rules or Charter specifically prohibiting multiplereconsiderations, stating in part “The court of appeal's conclusion, however, that theCharter "does not authorize voting on the Ordinance more than once," is incorrect. TheCharter states only that the Council may, at either of the two meetings, adopt theordinance. It does not purport, in any way, to determine the number of votes which may,or should, be taken on the veto; it establishes only a two-meeting time period withinwhich the veto must be considered. If the veto is not considered by the end of the secondmeeting, it may never be considered.................the Charter does not bar multiple votes inan attempt to override a veto. Once the Rules were suspended, the Council coulddetermine what procedures it would follow. This is a legislative body's prerogative. SeeState v. Gray, 221 La. 868, 60 So.2d 466, 468 (1952).”]

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III. 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.

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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 Legislatureis 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, that

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although 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).

D. Jazz Casino Company, L.L.C. v. Bridges, 309 So.3d 741 (La. App. 1 Cir. 2020),rehearing denied

Within "call" - Court at Footnote 16 - "Harrah's also asserts that Subsection (e) isunconstitutional under La. Const. art. III, § 2(B), which sets forth, relative toextraordinary sessions, that the governor "shall issue a proclamation stating the objects ofthe extraordinary session" and that "[t]he power to legislate shall be limited, underpenalty of nullity, to the objects specifically enumerated in the proclamation." Here, ItemNo. 1 of the proclamation stated, in relevant part, "to revise or repeal the prohibition andlimitations on owning or renting hotel rooms by the casino gaming operator." Harrah'scontends this was an insufficient articulation to allow the Louisiana Legislature to vote onlegislation relative to Subsection (e). The long-standing jurisprudential rule of law is thata statute must first be questioned in the trial court, not the appellate courts, and theunconstitutionality of a statute must be specially pleaded with the grounds for the claimparticularized. Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859,864-65. Harrah's failed to plead an Article III, § 2 impediment. Although Harrah'sasserted in its motion for partial summary judgment that Subsection (e) as interpreted bythe Department resulted in a violation of Article III, § 2, the trial court did not address theissue. Nevertheless, we find the assertion is without merit. See State ex rel. Porteriev. Smith, 184 La. 263, 275, 166 So. 72, 76 (1935) (The Governor's call need not statethe details of the legislation to be considered, as such matters are within thediscretion of the Legislature and beyond the control of the Governor except for hispower of veto. Where a general object is described, the legislature is free todetermine in what manner such object shall be carried into effect). The methodologyof valuation of no-longer-prohibited services set forth in Subsection (e) is merely anexpression of the manner in which the object, i.e., the removal of the prohibition onowning or operating hotel rooms by the casino gaming operator, is to be carried intoeffect for taxation purposes."

[Note: In Jazz Casino Company, L.L.C. v. Bridges, 309 So.3d 729 (La. 2021), theSupreme Court by per curiam granted in part and reversed in part, stating, "[f]or thereasons assigned by Judge Theriot, we grant this writ in part and reverse the lower courts'grant of summary judgment in favor of the Louisiana Department of Revenue only as itrelates to room taxes on third-party-hotel rooms which the Jazz Casino Company, LLC,neither owns nor operates; otherwise, this writ is denied.]

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E. 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).

F. 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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G. 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."

H. 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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I. 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."

J. 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).

K. 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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L. 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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f. Reapportionment - La. Const. Art. 3, §6 - “§6. Legislative Reapportionment;Reapportionment by Supreme Court; Procedure

Section 6.(A) Reapportionment by Legislature. By the end of the yearfollowing the year in which the population of this state is reported to the presidentof the United States for each decennial federal census, the legislature shallreapportion the representation in each house as equally as practicable on the basisof population shown by the census.

(B) Reapportionment by Supreme Court. If the legislature fails toreapportion as required in Paragraph (A), the supreme court, upon petition of anyelector, shall reapportion the representation in each house as provided inParagraph (A).

(C) Procedure. The procedure for review and for petition shall beprovided by law. “

(1) In addition to congressional and legislative districts, electoral districts ofother political entities are also potentially subject to redistricting, includingstate supreme, appellate and district courts, Public Service Commission,BESE, parish and city school boards, etc.

(2) Changes in census may also impact parish population figures and thus“general” laws made applicable by parish population ranges.

(3) See also, below, new Joint Rule 21 adopted by Legislature in 2021.

(4) Reapportionment will be in special session and, given census changes andpopulation shifts in Louisiana, will apparently be controversial. (See, forexample, “Mark Ballard: There Will Be Political Blood on the Floor WhenDrawing New Maps for Districts”, Baton Rouge Advocate, Nov. 20, 2021;“Gov. John Bel Edwards will veto congressional maps that aren't 'fair.'What does that mean?”, Baton Rouge Advocate, Nov. 20, 2021; “AsGerrymanders Get Worse, Legal Options to Overturn Them Dwindle”,New York Times, November 21, 2021)

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M. 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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IV. SELECTED NEW LEGISLATION:

A. Proposed Constitutional Amendments for November 13th Election - Results:

(1) FAILED 48-52% Amendment No. 1 - “Do you support an amendment to authorize thelegislature to provide for the streamlined electronic filing, electronic remittance, and thecollection of sales and use taxes levied within the state by the State and LocalStreamlined Sales and Use Tax Commission and to provide for the funding, duties, andresponsibilities of the commission?”(Adds Article VII, Section 3.1 - Act 131 of the 2021 Regular Session)

(2) APPROVED 54-46% Amendment No. 2 - “Do you support an amendment to lower themaximum allowable rate of individual income tax and to authorize the legislature toprovide by law for a deduction for federal income taxes paid?”(Amends Article VII, Section 4(A) - Act 134 of the 2021 Regular Session)

(3) FAILED 42-58% Amendment No. 3 - “Do you support an amendment to allow leveedistricts created after January 1, 2006, and before October 9, 2021, whose electorsapprove the amendment to levy an annual tax not to exceed five mills for the purpose ofconstructing and maintaining levees, levee drainage, flood protection, and hurricane floodprotection?”Amends Article VI, Section 39 - Act 132 of the 2021 Regular Session)

(4) FAILED 28-72% Amendment No. 4 - “Do you support an amendment to increase theamount of allowable deficit reductions to statutory dedications and constitutionallyprotected funds from five percent to ten percent?”Amends Article VII, Section 10(F)(2)(a) and (b) - Act 157 of the 2021 Regular Session)

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B. Selected New Acts:

(1) Revival of prescribed claims - Act 322 - Act 322 amends R.S. 9:2800.9 to provide that anaction against a person for sexual abuse of a minor, or for physical abuse of a minorresulting in permanent impairment or permanent physical injury or scarring does notprescribe, and that an action against a person convicted of a crime against the child doesnot prescribe and may be filed at any time following conviction.

Section 2 of the Act unequivocally states, "[f]or a period of three years followingthe effective date of this Act, any party whose action under R.S. 9:2800.9 was barred byliberative prescription prior to the effective date of this Act shall be permitted to file anaction under R.S. 9:2800.9 against a party whose alleged actions are the subject of R.S.9:2800.9. It is the intent of the legislature to revive for a period of three years any claimagainst a party, authorized by R.S. 9:2800.9, that prescribed prior to the effective date ofthis Act." (emphasis added) The act was effective on June 14, 2021.

The Section 2 language of Act 322 would appear to satisfy the thresholdrequirement of "clear and unequivocal" expression of legislative intent for revival of aprescribed claim, as set forth in Chance v. Am. Honda Motor Co., 635 So.2d 177(La.1994). This means that if Act 322 is challenged on the validity of such revival, thedirect issues before the court will be the substantive vested rights and due processconstitutional issues previously discussed in Chance and other cases, namely, whether theright to plead prescription is a constitutionally “vested” right that cannot be disturbed bystatute. Additional issues such as res judicata may also be implicated when the “revival”attempt affects a claim that had been previously adjudicated by final and definitivejudgment.

(2) Redistricting principles and criteria - Joint Rule 21. Enacted in 2021 by HCR 90 andeffective on June 11th, Joint Rule 21 states:

“Joint Rule No. 21. Redistricting criteria

A. To promote the development of constitutionally and legally acceptableredistricting plans, the Legislature of Louisiana adopts the criteria contained in this JointRule, declaring the same to constitute minimally acceptable criteria for consideration ofredistricting plans in the manner specified in this Joint Rule.

B. Each redistricting plan submitted for consideration shall comply with theEqual Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment tothe U.S. Constitution; Section 2 of the Voting Rights Act of 1965, as amended; and allother applicable federal and state laws.

C. Each redistricting plan submitted for consideration shall provide that eachdistrict within the plan is composed of contiguous geography.

D. In addition to the criteria specified in Paragraphs B, C, G, H, I, and J of thisJoint Rule, the minimally acceptable criteria for consideration of a redistricting plan for

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the House of Representatives, Senate, Public Service Commission, and Board ofElementary and Secondary Education shall be as follows:

(1) The plan shall provide for single-member districts. (2) The plan shall provide for districts that are substantially equal in population.Therefore, under no circumstances shall any plan be considered if the plan has anabsolute deviation of population which exceeds plus or minus five percent of the idealdistrict population.

(3) The plan shall be a whole plan which assigns all of the geography of the state.(4) Due consideration shall be given to traditional district alignments to the extentpracticable.

E. In addition to the criteria specified in Paragraphs B, C, G, H, I, and J of thisJoint Rule, the minimally acceptable criteria for consideration of a redistricting plan forCongress shall be as follows:

(1) The plan shall provide for single-member districts.(2) The plan shall provide that each congressional district shall have a population asnearly equal to the ideal district population as practicable.

(3) The plan shall be a whole plan which assigns all of the geography of the state.F. In addition to the criteria specified in Paragraphs B, C, G, H, I, and J of this

Joint Rule, the minimally acceptable criteria for consideration of a redistricting plan forthe Supreme Court shall be that the plan shall be a whole plan which assigns all of thegeography of the state.

G.(1) To the extent practicable, each district within a redistricting plan submittedfor consideration shall contain whole election precincts as those are represented as VotingDistricts (VTDs) in the most recent Census Redistricting TIGER/Line Shapefiles for theState of Louisiana which corresponds to the P.L. 94-171 data released by the UnitedStates Bureau of the Census for the decade in which the redistricting is to occur.However, if the redistricting plan is submitted after the year in which the legislature isrequired by Article III, Section 6, of the Constitution of Louisiana to reapportion, then tothe extent practicable, the redistricting plan submitted for consideration shall containwhole election precincts as those are represented as VTDs as validated through the dataverification program of the House and Senate in the most recent Shapefiles madeavailable on the website of the legislature.

(2) If a VTD must be divided, it shall be divided into as few districts aspracticable using a visible census tabulation boundary or boundaries.

H. All redistricting plans shall respect the established boundaries of parishes,municipalities, and other political subdivisions and natural geography of this state to theextent practicable. However, this criterion is subordinate to and shall not be used toundermine the maintenance of communities of interest within the same district to theextent practicable.

I. The most recent P.L. 94-171 data released by the United States Bureau of theCensus, as validated through the data verification program of the House and Senate, shallbe the population data used to establish and for evaluation of proposed redistricting plans.

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J. Each redistricting plan submitted to the legislature by the public forconsideration shall be submitted electronically in a comma-delimited block equivalencyfile.”

(3) APA and Emergency Rules - Effective August 1, 2021, Act 211 moved emergencyrulemaking requirements under the Administrative Procedure Act from La. R.S.49:953(B) to La. R.S. 49:953.1. The new section reads as follows:

“§953.1. Emergency rulemakingA.(1) In extraordinary circumstances an agency may adopt an emergency rule as

an alternative to the rulemaking provisions provided for in R.S. 49:953. An emergencyrule may be adopted by an agency without prior notice or a public hearing for any of thefollowing reasons:

(a) To prevent imminent peril to the public health, safety, or welfare. (b) To avoid sanctions or penalties from the United States. (c) To avoid a budget deficit in the case of the medical assistance program. (d) To secure new or enhanced federal funding.

(e) To effectively administer provisions of law related to the imposition, collection, oradministration of taxes when required due to time constraints related to congressional,legislative, or judicial action.

(2) It shall not be considered an emergency if the agency is acting in the normalcourse and scope of fulfilling its mission, failed to take necessary steps in theadministration of the agency to avoid an emergency, is promulgating rules to implementan Act of the legislature unless the Act specifically directed the agency to proceed withemergency rulemaking, or is continually republishing existing emergency rules.

(3) Subject to applicable constitutional or statutory provisions, an emergency ruleshall become effective on the date of its adoption, or on a date specified by the agency tobe not more than sixty days from the date of its adoption, provided written notice is givenas required by Subsection B of this Section.

(4) An emergency rule shall not remain in effect beyond the publication date ofthe Louisiana Register published in the month following the month in which theemergency rule is adopted, unless the emergency rule and the reasons for adoption arepublished in that issue. An emergency rule shall not be effective for a period longer thanone hundred eighty days.

(5) No emergency rule shall be adopted by an agency more than two consecutivetimes unless the agency is operating under a state or federal declaration of disaster, a stateor federal public health emergency, or an ongoing emergency as authorized by thelegislature, governor, or other provision of law. However, the agency may concurrentlyproceed with the adoption of an identical rule pursuant to the procedure provided for inR.S. 49:953(A).

B.(1) No later than five days after the adoption of an emergency rule, the agencyshall provide notice in writing of its emergency action along with a copy of theemergency rule. The notice shall contain, at a minimum, all of the following:

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(a) A preamble which states the specific provision or provisions of Paragraph(A)(1) of this Section the agency is citing as cause for emergency rulemaking and thespecific facts and detailed reasoning for emergency rulemaking in order to satisfy thecriteria for an emergency rule.

(b) The name of the person within the agency who has the responsibility forresponding to inquiries about the action.

(c) A statement that the intended action complies with the statutory lawadministered by the agency, including a citation of the enabling legislation.

(2)(a) The notice required in Paragraph (1) of this Subsection shall be transmittedto the governor of the state of Louisiana, the attorney general, the speaker of the House ofRepresentatives, the president of the Senate, and the office of the state register inaccordance with each entity's transmittal policy.

(b) No later than five days after the adoption of the emergency rule, the agencyshall transmit a copy of the notice required in Paragraph (1) of this Subsection to allpersons who have made timely request of the agency for notice of rule change.

(3) The office of the state register may omit from the Louisiana Register anyemergency rule which would be unduly cumbersome, expensive, or otherwise inexpedientto print, if the emergency rule in printed or processed form is made available onapplication to the adopting agency, and if the Louisiana Register contains a notice statingthe general subject matter of the omitted emergency rule, the reasons for the finding ofthe emergency submitted by the agency, and how a copy may be obtained.

C. The validity of an emergency rule may be determined in an action fordeclaratory judgment in the district court of the parish in which the agency is located. Theagency shall be made a party to the action. An action for a declaratory judgment underthis Section may be brought only by a person to whom such emergency rule is applicableor who would be adversely affected by such emergency rule and only on the grounds thatthe emergency rule does not meet the criteria for adoption of an emergency rule asprovided in Paragraph (A)(1) of this Section. The court shall declare the emergency ruleinvalid if it finds that there is not sufficient evidence that such emergency rule must beadopted on an emergency basis for one or more of the reasons for adoption of anemergency rule as provided in Subsection A of this Section. Notwithstanding anyprovision of law to the contrary, the emergency rule shall remain in effect until suchdeclaratory judgment is rendered. The provisions of R.S. 49:963 shall not apply to anyaction brought pursuant to this Section. The provisions of this Section are in addition toR.S. 49:963 and shall not limit any action pursuant to R.S. 49:963.

D.(1) Within sixty days after receipt of the emergency rule and agency noticerequired in Subsection B of this Section by the presiding officer of either the House ofRepresentatives or the Senate, an oversight subcommittee of either house mayindividually or jointly conduct a hearing to review the emergency rule and make adetermination of whether the emergency rule meets the criteria for an emergency rule setforth in Subsection A of this Section. The oversight subcommittee shall also make thefollowing determinations:

(a) Whether the emergency rule is in conformity with the intent and scope of theenabling legislation purporting to authorize the emergency rule.

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(b) Whether the emergency rule is in conformity with and not contrary to allapplicable provisions of law and of the constitution.

(c) The advisability or relative merit of the emergency rule. (d) Whether the emergency rule is acceptable or unacceptable to the oversight

subcommittee. (2)(a) If within sixty days after receipt of the emergency rule and agency notice

required in Subsection B of this Section either the House or Senate oversight committeedetermines that an emergency rule is unacceptable, the respective subcommittee shallprovide a written report which contains the following:

(i) A copy of the emergency rule. (ii) A summary of the determinations made by the oversight committee.

(b) The written report shall be delivered to the governor, the agency proposing therule change, and the Louisiana Register no later than four days after the oversightcommittee makes its determination.

(3) If an emergency rule is determined to be unacceptable by an oversightcommittee, the agency shall not propose a rule change or emergency rule that is the sameas or substantially similar to the disapproved emergency rule within four months afterissuance of a written report by the subcommittee issued pursuant to this Subsection, normore than once during the interim between regular sessions of the legislature.

E. Within sixty days after adoption of an emergency rule, the governor mayreview such emergency rule and make the determinations as provided in Subsection D ofthis Section. If within this time period the governor finds an emergency ruleunacceptable, he shall prepare a written report as provided in Paragraph (D)(2) of thisSection and transmit copies to the agency proposing the emergency rule and the LouisianaRegister no later than four days after the governor makes his determination.

F. Upon receipt by the agency of a report issued by the oversight subcommittee orthe governor finding an emergency rule unacceptable, the emergency rule shall benullified and shall be without effect. The governor shall have no authority to disapprovethe action taken on an emergency rule by the oversight subcommittee.”

[NOTE: As with similar language in the previous law, note should be taken of thepotential constitutional issues arising from the language above purporting toauthorize one committee of one house of the legislature to “nullify” an otherwisevalidly adopted agency rule that would have legal force and effect.]

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(4) Department of Justice Occupational Licensing Review Program - Act 399 of the 2021Regular Session enacted La. R.S. 49:260 establishing the Department of JusticeOccupational Licensing Review Program, and providing that "the attorney general shallhave the authority to enter into an agreement to provide active supervision of proposedoccupational regulations and proposed anti-competitive disciplinary actions of a stateoccupational licensing board. Such active supervision shall be performed in accordancewith this Section and the terms of the written agreement between the occupationallicensing board and the Department of Justice." Participation is voluntary and optional,and an occupational licensing board that participates is not required to comply with therequirements of the Occupational Board Compliance Act, La. R.S. 37:41, et seq. Also,Subsection (J) of Section 260 further states that its provisions shall not apply to theregulation of the practice of law.

(5) Compliance with legislative subpoenas - Act 219 amended R.S. 48:252 to provide thatDOTD contracts shall require contractors to agree to comply with a subpoena issued bythe Legislature or any of its committees.

(6) Capital Outlay - Act 88 amended R.S. 39:112 regarding capital outlay requests submittedby a budget unit of the state, including public postsecondary education institutions.

(7) Joint Medicaid Oversight Committee - HCR 3 amended Joint Rule 11(A)(1) to provide:

“Joint Rule No. 11. Joint Medicaid Oversight Committee; membership; powers,functions, duties

A.(1) The Joint Medicaid Oversight Committee is hereby created and shall consistof the following members of the House of Representatives and of the Senate:

(a)(i) Six members of the House of Representatives appointed by the speaker ofthe House of Representatives in a manner to reflect the makeup of the membership of theHouse of Representatives, including party affiliation, race, sex, and geography, to theextent practicable. Three of the members appointed by the speaker shall be members ofthe House Committee on Appropriations, and three of the members appointed by thespeaker shall be members of the House Committee on Health and Welfare.

(ii) However, if a member of the House of Representatives appointed pursuant toSubitem (i) of this Item is unable to attend a meeting of the special joint committee, themember may request the speaker to designate, and the speaker may so designate, anothermember of the House of Representatives to serve as his proxy at the meeting. To theextent practicable, the member designated to serve as a proxy shall have the same partyaffiliation as the special joint committee member.

(b)(i) Six members of the Senate appointed by the president of the Senate in amanner to reflect the makeup of the membership of the Senate, including party affiliation,race, sex, and geography, to the extent practicable. Three of the members appointed bythe president shall be members of the Senate Committee on Finance, and three of themembers appointed by the president shall be members of the Senate Committee onHealth and Welfare.

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(ii) However, if a member of the Senate appointed pursuant to Subitem (i) of thisItem is unable to attend a meeting of the special joint committee, the member may requestthe president to designate, and the president may so designate, another member of theSenate to serve as his proxy at the meeting. To the extent practicable, the memberdesignated to serve as a proxy shall have the same party affiliation as the special jointcommittee member.”

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V. SELECTED RECENT CASES:

A. Tax Held Invalid as Not Receiving Two-Thirds Vote:

(1) Calcasieu Parish School Board Sales & Use Department v. Nelson IndustrialSteam Company, 318 So.3d 271 (La. App. 3 Cir. 2021) - In the latest action in along-standing dispute involving multiple court decisions, La. R.S.47:301(10)(c)(i)(aa)(III)(aaa) held invalid. Court stated in part:

“The supreme court in its Per Curiam opinion in NISCO II, heldthat which was excluded from taxation before Act 3 amended La.R.S.47:301(10)(c)(i)(aa) are now subject to taxation. Thus, Act 3 imposes anew tax. There is no dispute here that Act 3 was not passed by the requiredtwo-thirds vote of the legislature...................................the supreme courtremanded the case to this court for consideration of issues pretermitted byour previous ruling with instruction to address those issues, specifically“including an analysis of whether the amendment is a new tax or anincrease in a tax.” Id. Based upon the supreme court's instruction inNISCO II, we now find it necessary to address only the issues of whetherthis is a new tax and whether the new tax created by Act 3's removal of aprior exclusion from taxation was enacted in accordance with theLouisiana Constitution.

We find it is a new tax and the enactment was not in accordancewith the Louisiana Constitution. There is no dispute here on summaryjudgment that Act 3 was passed without the requisite two-thirds vote ofthe legislature. Applying the supreme court's rationale articulated in its PerCuriam opinion in NISCO II, we find Act 3 sought to tax that which waspreviously excluded from taxation. It is, therefore, a new tax. We furtherfind it is not necessary to address any other issues presented................Thetrial court erred as a matter of law in concluding that the tax provision atissue was a tax exemption rather than, as we and the state supreme courthave found, it was a tax exclusion.................In NISCO I the state supremecourt found that La.R.S. 47:301(1)(a)(i)(c)(1)(aa) statutorily excluded“sales of materials for further processing into articles of tangible personalproperty” from the term “sale at retail.” NISCO I, 190 So.3d at 279. Thesupreme court explained that this statutory provision was a tax exclusion,differentiating it from a tax exemption. We agree with that reasoning.While a tax exemption makes a transaction that would otherwise betaxable exempt from such taxation, a tax exclusion renders a transactionnot taxable ab initio........................ [U]nder the statutory provisionsenacted by Act 3, the high court explains that a proper application of Act3's revisions to the statute now render NISCO's purchases of limestonetaxable and no longer excluded from taxation. Clearly, under the priorstatute, according to the supreme court, the ash was not an incidentalbyproduct and therefore the limestone used to make it was excluded from

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taxation. Now, under the supreme court's interpretation of the currentstatute, what was excluded from taxation is now subject to tax........ underthe supreme court's interpretation of the language of Act 3 here in NISCOII, the statute now defines NISCO's ash product as an “incidentalbyproduct” making “the purchase of limestone ... a material furtherprocessed into ash,” no longer excluded from taxation, but now subject totaxation because it is no longer “deemed to be sales for furtherprocessing.” NISCO II, 303 So.3d at 293.”

[Note: Regarding taxes and whether a charge is a “tax” at the local level, seeMoore v. City of Westlake,____So.3d____, 2021 WL 5100826 (La. App. 3 Cir.2021), stating in part - “According to Plaintiffs, by applying these principlesexpressed in Audubon, this court should find that the Westlake ordinancesconstitute taxes because their primary purpose is to generate revenue. We agreethat the purpose of ordinances 880-882 was to generate revenue. The City ofWestlake stated as much when it acknowledged that it was nearly bankrupt due todeclining revenues when these ordinances were passed, and that it had an urgentneed to generate revenue.

However, while we are mindful of the excerpt of Audubon cited byPlaintiffs, we find Plaintiffs’ assertion that if a law has a primary purpose ofgenerating revenue, then it is a tax, is not an accurate interpretation of Audubon,nor of our supreme court's ideals regarding such a bright-line rule on whetherlegislation constitutes a tax.

In City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (1964),our supreme court upheld the constitutionality of a city ordinance that declaredthat the collection and disposal of garbage was a revenue-producing utility andimposed a service charge to defray the expenses of disposal and maintenance. Ofnote, our supreme court stated in Wallace, 170 So.2d at 660 (quotingAm.Jur.Taxation, § 16, pp. 48-49) stated the following:

(A state or one of its subdivisions frequently receives income from sourcesother than taxation, so that all forms of public revenue cannot withaccuracy be called taxes. Thus, a city or town is frequently authorized tofurnish some form of public service for profit, or at least for compensation.Such charges are not in any just sense taxes. Thus, it is well settled that thecharges made upon consumers by municipal waterworks are not taxes, butmerely the price paid for commodity sold.)

Further, we find Audubon distinguishable from this case. The Louisiana SupremeCourt in Audubon struck down an amendment to La.R.S. 22:1419 (now La.R.S.22:1476) that required insurers and policyholders of every kind to pay anassessment based on percentage of collected premiums that benefitted theFirefighters’ Retirement system. Audubon addressed legislatively-imposedassessment on insurers, rather than revenue generated from a revenue-producingpublic utility. This distinguishment is relevant because legislatively-createdauthorizations for revenue generation is not the same for the Louisiana Insurance

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Rating Commission as it is for municipalities. Taxes are not the only forms ofpermissible revenue for local governments.............................Accordingly, we findthat a political subdivision may legally raise revenue for its general funds fromrevenue-producing public utilities as authorized by La.Const. art. 6, § 37 andLa.R.S. 33:4161 - 33:4320. See Bd. of Com'rs of La. Mun. Power Comm'n v. AllTaxpayers, Property Owners, and Citizens, 360 So.2d 863, 868 (La.1978),wherein our supreme court acknowledged that “historically, net utility revenueshave been transferred to the general funds of the cities.”.

See also, Balbesi v. Lafayette City-Parish Consolidated Government, et al,311 So.3d 476 (La. App. 3 Cir. 2020), writ denied 313 So.3d 273 (La. 2021),concluding that Lafayette Utilities System was a revenue-producing public utilityexempt from ad valorem taxes and annual transfers of utility's revenues to thegovernment known as in-lieu-of-tax (ILOT) payments were not de facto advalorem taxes.]

B. Legislative Auditor:

(1) Louisiana Board of Ethics v. Purpera, 321 So.3d 401 (La. App. 1 Cir. 2021), writdenied, 315 So.3d 868 (La. 2021) - First Circuit Court of Appeal determined thatthe Legislative Auditor was statutorily precluded from accessing privilegedrecords of the Board of Ethics connected to complaints and investigations, statingin part:

"We conclude, as did the trial court, that the legislature never intended forthe Auditor to have full access to statutorily privileged informationobtained by the Ethics Board in its investigations and private hearings. Ifthe legislature had intended for privileged information to be includedwithin the Auditor's broad authority to access documents and records, thenthe enabling statute for the Auditor's authority, La. R.S. 24:513(I), wouldhave stated "confidential, privileged, or otherwise," and not just"confidential or otherwise." See Donelon, 64 So.3d at 862. When thelegislature intends for privileged information to be overridden by statute,then the legislature makes sure that the statute clearly indicates that theprivilege is trumped by the statute. Id. As we indicated in Donelon, there isno indication that the statute in question is specifically intended tosupplant any statutory privilege. Id. Thus, the Auditor's broad access to therecords of the Ethics Board is not without limitation . . . The Ethics Boardfiled a petition for declaratory judgment in an attempt to preserve theprivileged documents that are in its possession. The Ethics Board is nottrying to assert a privilege that belongs to a third party. For this reason, wedistinguish Louisiana State Board of Medical Examiners v. Purpera,2018-0483 (La. App. 1st Cir. 12/20/18) (unpublished), 2018 WL 6716926,(where the plaintiff Board sought to assert a testimonial privilege thatbelonged to a patient and his health care provider while undergoing a

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performance audit by the Auditor). We find no error or abuse of discretionin the trial court's judgment denying the Auditor access to the privilegeddocuments of the Ethics Board that were obtained and/or prepared inconnection with investigations and hearings of the Ethics Board, includingminutes of its executive sessions."

(2) Johnson v. Purpera, 320 So.3d 374, 397-398 (La. 5/13/21), - defamation claimsagainst the Legislative Auditor arising from certain statements made in auditreports and summaries. After review of Louisiana defamation law, the stateSupreme Court concluded that such statements were constitutionally-protectedstatements of opinion relating to matters of public concern, stating in part:

“Clearly, an ordinary person reading the audits, we believe, wouldunderstand the language alleged by plaintiff to be defamatory simplyconveys the Auditor's professional judgments or opinions based on thefacts disclosed to the Auditor (and reported in the audits) during the auditprocess.13 This is true for the remaining statements alleged by plaintiff tobe defamatory: the statement that it “appears” that HEAL used services forlobbying, “possibly” in violation of state law; and the statement thatplaintiff was paid $215.73 for travel reimbursement “in violation of statetravel regulations.” In each of these instances, the audit reports the facts onwhich the Auditor's judgment or opinion is based. In the instance oflobbying services, in particular, the use of the words “appears” and“possibly” underscores the subjective nature of the assessment. In theinstance of travel reimbursement, the audit states the basic facts. Plaintiffdoes not dispute that he received reimbursement for travel within the Cityof New Orleans, which was HEAL's domicile. Whether thatreimbursement complies with state law is a matter of professionaljudgment, or opinion.

Based on the above analysis, we find that none of the statements inthe audits identified by plaintiff as objectionable are actionable,defamatory statements. Rather, the statements are opinions, orconclusions, of the auditors based on disclosed facts and, as such, are notprovably false. The opinions expressed do not imply the existence of falsedefamatory facts. As a result, they are entitled to full constitutionalprotection, Romero, 94-1105 at 7, 648 So.2d at 870, and the defendantsare entitled to summary judgment in their favor.”

As the Supreme Court noted nearly sixty years ago, where publicissues are concerned, speech “should be uninhibited, robust, andwide-open, and ... it may well include vehement, caustic, and sometimesunpleasantly sharp attacks on government and public officials.” New YorkTimes, 376 U.S. at 270, 84 S.Ct. 710. That precept rings especially true inthis case, where the Louisiana Legislative Auditor is charged by statutewith the obligation to “call attention to those matters required by

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governmental auditing standards, including reportable conditions, failureto comply with laws and regulations, and such additional matters that maybe included in a management letter.” La. R.S. 24:516(A)(2).14 In otherwords, it is the role and the duty of the Auditor to examine the facts andoffer a professional judgment based on the disclosed facts as to anyproblems that might have been uncovered in the operations of the state, itsagencies, or political subdivisions after reviewing those facts. Where, ashere, the audit report articulates all the facts and then offers a finding orconclusion based on those disclosed facts, that finding or conclusion is astatement of opinion, which cannot form the basis of a defamation claim.Otherwise, as the Legislative Auditor argues, the utility of the office, andthe public debate surrounding government affairs, will be significantlydiminished.” (footnotes omitted).

Justices Griffin and Genovese dissented, and Justice Hughesconcurred in part and dissented in part.

(3) LaCerte v. State, 323 So.3d 414 (La. App. 1 Cir. 4/16/21) and previous decisionsin the history of the matter discussed, concluding after a series of opinions that theState of Louisiana, Legislative Auditor, and Inspector General, in their officialcapacities as juridical persons rather than natural persons, did not have aconstitutional right to freedom of speech and thus the trial court's granting todefendants of a special motion to strike under La. C.C.P. Art. 971 and award ofattorney fees were reversed. During the same matter an exception of no cause ofaction based on legislative immunity was filed by the Legislative Auditor,individually and in his official capacity. The exception was granted as to the claimfor defamation arising out of the joint investigation report but was denied as toclaims arising out of a press release.

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(4) Purpera v. Robinson, 320 So.3d 425, 428-430 (La.App. 1 Cir. 2021), writ denied,315 So.3d 868 (La. 2021) - State Legislative Auditor filed petition for declaratoryjudgment against state Secretary of Department of Revenue, seeking judgmentthat Secretary must provide statistical data sets comparing Medicaid recipients’self-reported income to Department of Health against same recipients’self-reported income to Department of Revenue on their state tax returns. Districtcourt sustained defendant’s exceptions and dismissed petition. On appeal,affirmed, with the First Circuit Court of Appeal concluding that no justiciablecontroversy existed between Auditor and Secretary, and the question of whetherAuditor could obtain statistical data sets from Secretary by request was purelyacademic and theoretical.

Court stated in part:“ In this case, the Auditor sent a request for statistical data sets to the LDR

in connection with an audit of the LDH, but the LDR did not fully respond to therequest. The mere sending of a request for information and a failure to fullyrespond does not rise to the level of an actual and substantial dispute. If theAuditor were to obtain a legislative subpoena for the production of the LDR'sdocuments and the LDR refused to honor the subpoena because of its concerns ofviolating laws prohibiting the giving of confidential and privileged taxinformation, then a real, actual dispute would exist for judicial relief.3Furthermore, while the Auditor has broad authority to conduct audits of all publicentities and access their records in furtherance of an audit, that authority is onlyover an “auditee.” See La. R.S. 24:513(A)(1)(a)............................A plain readingof the statutory authority of the Auditor indicates that the Auditor does not have alegally protectable interest or right to the LDR's documents and, moresignificantly, the LDR does not have a legal duty to provide the documents to theAuditor, when the LDR is not being audited. The Auditor relies on an exception tothe general rule that tax return information is confidential and privileged, in thatthe Auditor's document request in this case is classified as statistical data sets thatprevent the identification of any tax return. See La. R.S. 1508(B)(2). However, weare not inclined to agree with the Auditor's position, because the Auditor simplymay not access confidential tax return information from LDR when conducting anaudit unless the LDR is the auditee. See La. Atty. Gen. Op. No. 17-0147 (2018),2018 WL 1020015.5

Moreover, this court in Louisiana Dept. of Ins. ex rel. Donelon v. Theriot,2010-0069 (La. App. 1st Cir. 5/3/11), 64 So.3d 854, 859, writ denied, 2011-1139(La. 9/30/11), 71 So.3d 286, recognized the procedure outlined in the Audit Lawproviding that the Auditor must first seek its administrative subpoena remedyprior to initiating an action in court. See also Kyle v. Louisiana Public ServiceCom'n, 2003-0584 (La. App. 1st Cir. 4/2/04), 878 So.2d 650, 654. Pursuant toDonelon, we have also recognized that the “auditee,” not the Auditor, has the rightto seek a ruling from the trial court as to whether the documents sought by theAuditor must be submitted. That is because access to information granted to theAuditor is only to include information that is reasonably related to a lawfully

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performed audit. Until the Auditor issues a subpoena for the requested documents,the Auditor does not have a legally protectable interest. Donelon, 64 So.3d at862. Thus, there is no justiciable controversy, and the trial court did not abuse itsdiscretion in determining that the Auditor did not have standing to bring thisdeclaratory action. A trial court may refuse to render a declaratory judgment ifsuch judgment would not terminate the uncertainty or controversy giving rise tothe proceeding. Goodwin, 277 So.3d at 828. A trial court must refuse to entertainan action for a declaration of rights if the issue presented is academic, theoretical,or based upon a contingency that may or may not arise. Id. at 828-29. The issue inthis case is purely academic and theoretical since the LDR is not the auditee.”(emphasis added and footnotes omitted).

C. Emergency Pandemic Orders By State and Local Officials - Brief Case Notes:

(1) Edwards v. Louisiana State Legislature, 315 So.3d 213 (La. 2020) - involved anattempt by one house of the Legislature to terminate by petition a State of PublicHealth Emergency pursuant to the provisions of La. R.S. 29:768(B). The petitionwas in response to Proclamation Number 134 JBE 2020 issued by the governorimposing certain restrictions in light of the COVID-19 pandemic. The petition bythe House of Representatives ordered the governor to issue a proclamationterminating 134 JBE 2020 for a period of seven days. In addition, the HousePetition ordered the governor to consult with the legislature for approval prior tothe declaration of a post-suspension public health emergency.

In response, the governor filed a declaratory judgment action challengingthe constitutionality of the petition and further claiming the petition was null andvoid (on a statutory basis) because the House had failed as required by the statuteto consult meaningfully with the public health authority prior to issuing thepetition. At the district court hearing, the parties stipulated that the court should trythe permanent injunction and declaratory judgment action as it related to theconstitutional issues only. The district court thereafter rendered judgment declaringLa. R.S. 29:768(B) unconstitutional.

On direct appeal to the Louisiana Supreme Court, the Court reversed thedistrict court. Pretermitting the merits, the Supreme Court found the district courthad erred in reaching the issue of constitutionality prior to determining whether thedispute could be resolved on non-constitutional grounds. Although recognizingthat the case presented "novel issues which are important to the citizens of ourstate", the Court vacated the judgment of the district court and remanded the matterto the district court, instructing it to rule upon all non-constitutional arguments andreaching the constitutional challenge only if such a challenge was essential toresolution of the case.

In Edwards v. Louisiana State Legislature, Not Reported in So. Rptr.,2021-0294 (La. App. 1 Cir. 3/18/21), the First Circuit Court of Appeal concludedthe above Supreme Court holding mandated the district court to schedule a hearingon all rulings vacated, including exceptions previously heard and decided by the

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court, and in Edwards v. Louisiana State Legislature, et al, 2021 WL 4592740,2021-0950 (La. App. 1 Cir. 10/6/21) (unpublished), the court sua sponte dismissedthe matter and plaintiff and defendant claims as moot since the emergencyproclamation at issue had expired.

(2) 910 E Main LLC v. Edwards, 481 F.Supp.3d 607 (W.D. La. 2020)- bar ownerssought a preliminary injunction halting enforcement of emergency orderspreventing bars from serving alcohol to customers on site, claiming due processand equal protection violations. The District Court denied the motion, concludingthat the orders bore a real or substantial relation to the public health crisis resultingfrom pandemic, restricted bar owners' purely economic rights, a rational basisexisted to conclude that the orders would aid in stemming upward trend inCOVID-19 cases, and there was a reasonable basis to distinguish between permitsfor bars and restaurants with bars when issuing orders. See Big Tyme Investmentscase below.

(3) Cangelosi v. Edwards, 2020 WL 6449111 (E.D. La. 2020) - Eastern District Courtrejected the plaintiff's claims that mask mandates violated numerous constitutionalprovisions and dismissed the matter for lack of subject matter jurisdiction andfailure to state a claim.

(4) Cangelosi v. Sheng, WL 5960682 (E.D. La. 2020), appeal dismissed, Cangelosi v.Sheng, 2020 WL 9217904 (5th Cir. La. 2020)- Eastern District Court rejected theplaintiff's claims that parish mask requirements were not enforceable.

(5) Big Tyme Investments, L.L.C. v. Edwards, 985 F.3d 456 (5th Cir. La. 2021) -United States Court of Appeals for the Fifth Circuit affirmed the denials ofpreliminary injunctions by district courts in the Eastern and Western districtssought by bar owners on equal protection grounds to halt enforcement of ordersthat prohibited the on-site consumption of alcohol and food at bars, but permittedsuch consumption at restaurants.

(6) Cangelosi v. Sizzling Caesars, LLC, 2021 WL 291263 (E.D. La. 2021) - plaintiffsued the defendant pizza place because of an employee's request that he wear amask in compliance with the governor's mask mandate. He alleged that he wasdenied service after refusing a request to provide a doctor's note to verify his claimthat a medical condition prevented him from wearing a mask. The District Courtdismissed the matter for lack of subject matter jurisdiction and failure to state aclaim.

(7) New Orleans Catering v. Cantrell, 523 F.Supp.3d 902, 2021 WL 795979 (E.D. La.2021) - catering company and its proprietor brought action against the mayor ofNew Orleans, claiming that the city's indoor-gathering restrictions mandated toslow the spread of COVID-19 violated their Fourteenth Amendment rights to equal

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protection and substantive due process. The District Court concluded thechallenges failed on the merits and denied injunctive relief. See also, New OrleansCatering, Inc. v. Cantrell, WL 1401757 (E.D. La. 2021), denying reconsideration.

(8) Fontana v. Cantrell, 2021 WL 2514682 (E.D. La. 2021) - plaintiff's constitutionalchallenges to now-expired restrictions were dismissed by the District Court asmoot, but plaintiff was afforded an opportunity to file further pleadings regarding aclaim of loss of rental income.

(9) Spell v. Edwards, 849 Fed. Appx. 509 (5th Cir. La. 2021) - United States Court ofAppeal for the Fifth Circuit vacated the district court's dismissal of a lawsuit thatchallenged as a violation of the Free Exercise clause certain executive ordersimposing capacity restrictions on in-person religious worship gatherings. The FifthCircuit stated:

"In its opinion, the district court applied rational basis review to determinethat the plaintiffs had not stated a claim for violation of the Free ExerciseClause and also determined that the plaintiffs' claims for injunctive reliefwere moot. In making its determinations, the district court did not have thebenefit of considering the Supreme Court's recent cases regarding how theFree Exercise Clause applies in the particular context of state-imposedCOVID-19 restrictions on religious worship……. We express no opinionon the merits of this case or the immunity defenses raised by thedefendants, which the district court should review in the first instance.

We VACATE the final judgment in this case and REMAND for thedistrict court to analyze the plaintiffs' claims for damages1 in light ofSupreme Court authority." (footnotes omitted).

(10) BST Holdings, et al. v. OSHA, et al, No. 21-60845 - U.S. Court of Appeals forFifth Circuit issued stay of federal vaccine mandate by OSHA affecting certainlarger employers with at least 100 employees, requiring unvaccinated employees towear masks indoors starting Dec. 5 and to undergo weekly testing at work if stillunvaccinated by Jan. 4th. Petitioners had sought review of OSHA action claimingthat such mandate exceeded OSHA’s authority under its enabling statute, exceededCongress’s authority under the Interstate Commerce Clause, and exceededCongress’s authority under the nondelegation doctrine. Other challenges to theOSHA mandate are pending in different circuits, and cases may be consolidated.

[See also, discussing litigation arising from COVID-19 emergency orders, "COVID-19Related Litigation: Constitutionality of Stay-at-Home, Shelter-in-Place, and LockdownOrders", 55 A.L.R. Fed. 3d Art. 3, and "General delegation of power to guard againstspread of contagious disease", 8 A.L.R. 836; La. Const. Arts. 6, §9 and 1,§ 4 and La. R.S.33:4890 concerning police power; and La. R.S. 29:724, 727, 737 and 760, et seq,regarding emergency actions by state and local officials.]

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D. Mandamus:

(1) Lowther, et al. v. Town of Bastrop, 320 So.3d 369 (La. 2021) - Supreme Courtconcludes that, under applicable statutes, city employees who were current andformer firefighters were authorized to seek payment of judgment for back wagesthrough mandamus.

(2) Law Industries, LLC v. Board of Supervisors of Louisiana State University, 300So.3d 21 (La. App. 1 Cir. 2020), writ denied, 302 So.3d 515 (La. 2020) - discussing the provisions of R.S. 38:2191 as authorizing mandamus under certaincircumstances. R.S. 38:2191 was amended by Act 205 of the 2021 RegularSession.

E. “Ratification” and Retroactivity:

(1) Domino v. Spartan Adventure Park LLC, (W.D. Louisiana 2021), Slip Copy 2021WL 1324270, and adopting magistrate’s report and dismissal of case withprejudice, Domino v. Spartan Adventure Park LLC (W.D. Louisiana 2021)Slip2021 WL 1321318 - granted defendant’s motion to dismiss on grounds ofprescription, due to Legislature’s limiting of suspension proclamations in enactingR.S. 9:5828-5830. Court stated in part:

“However, on June 9, 2020, the Louisiana Legislature passed legislation“approv[ing], ratif[ying], and confirm[ing]” Governor Edwards'Proclamation JBE 2020-30 and any extensions thereof, but also addedcertain limitations. LA. REV. STAT. 9:5828(B). The statute provides inpart:

All prescriptions, including liberative, acquisitive, and theprescription of nonuse, abandonment periods, and all peremptiveperiods shall be subject to a limited suspension or extension duringthe time period of March 17, 2020, through July 5, 2020; however,the suspension or extension of these periods shall be limited andshall apply only if these periods would have otherwise expiredduring the time period of March 17, 2020, through July 5, 2020.The right to file a pleading or motion to enforce any right, claim, oraction which would have expired during the time period of March17, 2020, through July 5, 2020, shall expire on July 6, 2020.LA. REV. STAT. 9:5829(A).The enactment of La. Rev. Stat. 9:5828-5830 retroactively limited

Governor Edwards' Proclamation in scope by narrowing the category ofclaims to which it applies and by limiting the relief from liberativeprescription. Under Louisiana Civil Code Article 6, “[i]n the absence ofcontrary legislative expression, substantive laws apply prospectively only.Procedural and interpretative laws apply both prospectively andretroactively, unless there is a legislative expression to the contrary.” LA.

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CIV. CODE ART. 6. Here, the legislature expressed clear intent for thisstatute to be retroactive. See 2020 La. Sess. Law Serv. Act 162, § 3 (H.B.805)(West)(“This Act is declared to be interpretative, curative, andprocedural and therefore is to be applied retroactively as well asprospectively.”)

Accordingly, the next question is whether the enactment impairsany contractual obligations or vested rights. Keith v. U.S. Fidelity & Guar.Co., 96-2075, p. 6 (La. 5/9/97), 694 So. 2d 180, 183 (“[Louisiana CivilCode] Article 6 requires a two-fold inquiry. First, we must ascertainwhether the enactment expresses legislative intent regarding retrospectiveor prospective application. If such intent is expressed, the inquiry endsunless the enactment impairs contractual obligations or vested rights.”); seealso Bourgeois v. A.P. Green Indus., Inc., 2000-1528, pp. 6-7 (La. 4/3/01),783 So. 2d 1251, 1257-58 (holding that if legislative intent is expressed inthe act regarding retroactive or prospective application, the classification ofthe act by the court as substantive, procedural, or interpretive does notoccur and the court must defer to the intent expressed, subject toconstitutional limitations).3. Constitutional Considerations: Impact on Vested Rights

Under La. Rev. Stat. 9:5828-5830, Plaintiffs' claims would haveprescribed on July 6, 2020. However, Plaintiffs claim that this legislationlimiting the Governor's proclamations cannot be applied because it wouldviolate due process and deprive Plaintiffs of a vested right. Statutes arepresumed to be constitutional and the burden of proving that an act of thelegislature is unconstitutional is on the party attacking that act. Soloco, Inc.v. Dupree, 97-1256, p. 3 (La. 1/21/98), 707 So. 2d 12, 14. The LouisianaCourt of Appeal for the First Circuit has stated:

A right is ‘vested’ when the right to enjoyment, present orprospective, has become the property of some particular person orpersons as a present interest. It must be absolute, complete,unconditional, and independent of a contingency; the mereexpectation of a future benefit or contingent interest in propertydoes not create a vested right.

P. Raymond Lamonica & Jerry G. Jones, 20 LA. CIV. L. TREATISE,LEGIS. LAW & PROC. § 6:4 Retroactivity of legislation—A briefoverview (2020 ed.)(quoting Matter of American Waste and PollutionControl Co., 597 So. 2d 1125 (La. Ct. App. 1st Cir. 1992)). The LouisianaSupreme Court has stated that the “legislature has always enjoyed thepower to create new rights and abolish old ones as long as it does notinterfere with vested rights.” Id. (quoting Morial v. Smith & Wesson Corp.,785 So. 2d 1, 28–29 (La. 2001)).

A cause of action accrues when a party has the right to sue. Cole v.Celotex Corp., 599 So. 2d 1058, 1063–64, n.15 (La. 1992). Once a cause ofaction accrues, it becomes a vested property right. Bourgeois, 783 So. 2d

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1251, 1259; Lott v. Haley, 370 So. 2d 521, 524 (La. 1979). However, thetime for filing, i.e., the prescriptive period, is not a vested right. SeeBourgeois, 783 So. 2d 1251, 1257-58; Dupree, 707 So. 2d 12, 14. Statutesof limitations are generally considered retroactive and apply to causes ofactions that accrue prior to enactment, regardless of whether the legislationshortens or extends the period of prescription. Lamonica & Jones, supra(citing Lott, 370 So. 2d at 523).

The Louisiana Supreme Court has held that “a newly-created statuteof limitation or one which shortens existing periods of limitation will notviolate the constitutional prohibition against divesting a vested rightprovided it allows a reasonable time for those affected by the act to asserttheir rights.” Lott, 370 So. 2d at 524 (citing Cooper v. Lykes, 49 So. 2d 3(1950); State v. Recorder of Mortgages, 173 So. 139 (1937)). Further, “thelegislature is the judge of the reasonableness of the time and the courts willnot interfere except where the time is so short as to amount to a denial ofjustice.” Id. (citing Cooper, 49 So. 2d 3).2

There have been other instances prior to the Covid-19 pandemicwhere Louisiana governors have issued executive orders suspendingprescription. For example, in response to Hurricane Katrina, GovernorBlanco issued several executive orders suspending liberative prescriptionand peremptive periods. See Executive Order KBB 2005-32; ExecutiveOrder KBB 2005-48; KBB 2005-67. Her executive orders were later“approved, ratified, and confirmed” by La. Rev. Stat. 9:5821-5822, butthese statutes also added an exception to the suspension by ending allsuspensions on January 3, 2006. LA. REV. STAT. 9:5821-5822.Specifically, they limited the prescriptive suspensions, so that “any right,claim, or action which would have expired during the time period ofAugust 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.”LA. REV. STAT. 9:5821-5822. To date, courts have generally given effectto such executive orders suspending prescription and subsequent legislativemodifications to the suspensions without discussion of potentialconstitutional issues. See, e.g., Harris v. Stogner, 2007-1451, pp. 2-3 (La.11/9/07), 967 So. 2d 1151, 1152; Carmena v. E. Baton Rouge Sheriff'sDep't, 2007-0300, p. 2 (La. App. 1 Cir. 2/8/08), 2008 WL 383383, at *2,writ denied, 2008–0567 (La. 5/2/08), 979 So. 2d 1286.

Here, the Louisiana Legislature did shorten the prescriptive periodof Plaintiffs' claims by limiting the Governor's proclamations with theenactment of La. Rev. Stat. 9:5628-5630. However, the legislature alsoprovided an adequate grace period in which affected persons could stilltimely file their claims. The statute limiting the Governor's order wasenacted on June 9, 2020; thus, Plaintiffs had nearly one month to file theirclaim before it prescribed on July 6, 2020. Accordingly, the Plaintiffs werenot impermissibly deprived of a vested right because they had a reasonable

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opportunity or “grace period” to assert their claims, and their claimprescribed on July 6, 2020.4. The August 28, 2020 Louisiana Supreme Court Order

The Louisiana Supreme Court has held that “prescription cannot besuspended after it has run.” See Geiger v. Dep't of Health & Hosp., 01-2206(La. 04/12/02), 815 So. 2d 80, 83. Since prescription of Plaintiffs' claimsran on July 6, 2020, the August 28, 2020 order of the Louisiana SupremeCourt does not apply and cannot suspend or otherwise revive Plaintiffs'claims.” (footnotes omitted).

[Questions: Do emergency suspensions of prescription and peremption bythe governor and Louisiana Supreme Court have legal force and effectindependent of subsequent “ratification” by the Legislature? See new lawsbelow enacted in 2020.

If the suspensions do have such legal effect, then to what extent canlater legislative “ratification” alter the effects of those suspensions? If not,by when does such legislative “ratification” need to occur? What happens ifno legislative “ratification” is ever made? In light of the new laws below, is“ratification” still needed at all?

“Civil Code Art. 3472.1. Emergency suspension of prescription andperemption

A. Notwithstanding any other provisions of the law, in the event thegovernor declares a state of emergency or disaster pursuant to R.S. 29:721through 772, the Supreme Court of Louisiana may enter an order or seriesof orders as deemed necessary and appropriate to suspend all prescriptiveand peremptive periods for a period of time not to exceed ninety days.Thereafter, should the need for continuing suspension be necessary topreserve access to the courts, the governor may issue executive orders asdeemed appropriate. The period of suspension authorized by the provisionsof this Article shall terminate upon the earlier of an order of the SupremeCourt of Louisiana or upon termination of the declared state of disaster oremergency. Nothing in this Article limits the authority of the governor orthe legislature to act in accordance with its authority.

B. The right to file any pleading subject to the suspension asprovided by Paragraph A of this Article shall terminate sixty days after thetermination of the suspension as provided by Paragraph A of this Article.”

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“Code of Civil Procedure Art. 562. Emergency suspension of abandonmentA. Notwithstanding any other provisions of law to the contrary, in

the event the governor declares a state of emergency or disaster pursuant toR.S. 29:721 through 772, the Supreme Court of Louisiana may enter anorder or series of orders as deemed necessary and appropriate to suspendthe period of abandonment for a period of time not to exceed ninety days.Thereafter, should the need for continuing suspension be necessary topreserve access to the courts, the governor may issue executive orders asdeemed appropriate. The period of suspension authorized by the provisionsof this Article shall terminate upon the earlier of an order of the SupremeCourt of Louisiana or upon termination of the declared state of disaster oremergency. Nothing in this Article limits the authority of the governor orthe legislature to act in accordance with its authority.

B. The right to file any pleading subject to the suspension asprovided by Paragraph A of this Article shall terminate sixty days after thetermination of the suspension as provided by Paragraph A of this Article.”

“Code of Criminal Proc. Art. 958. Suspension of time limitations indeclared disaster, emergency, or public health emergency

A. Notwithstanding any provision of law to the contrary, if thegovernor has declared a disaster or emergency pursuant to the provisions ofR.S. 29:721 et seq. or a public health emergency pursuant to R.S. 29:760 etseq., the supreme court is authorized to issue an order, or series of orders asit determines to be necessary and appropriate, that shall have the full forceand effect of suspending all time periods, limitations, and delays pertainingto the initiation, continuation, prosecution, defense, appeal, andpost-conviction relief of any prosecution of any state or municipal criminal,juvenile, wildlife, or traffic matter within the state of Louisiana includingbut not limited to any such provisions in this Code, the Children's Code,and Titles 14, 15, 32, 40, and 56 of the Louisiana Revised Statutes of 1950,or in any other provision of Louisiana law, for a determinate period of thirtydays except as otherwise provided by this Article.

B. The thirty-day period provided for in this Article shall commenceto run from the date the supreme court issues the order or from a particulardate specified by the supreme court in the order, whichever is earlier.

C. The thirty-day period provided in Paragraph A of this Articlemay be extended by further order of the supreme court for additionalsuccessive periods with each period not exceeding thirty days.

D. The period of suspension authorized by the provisions of thisArticle shall terminate upon order of the supreme court or upon terminationof the declared disaster, emergency, or public health emergency, whicheveris earlier.

E. The provisions of this Article shall not apply to Articles 230.1,230.2, and 232 and Children's Code Articles 624 and 819.

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F. Nothing in this Article shall be construed to negate or impair theapplication of any other provision of law regarding the suspension orinterruption of time periods, limitations, or delays.”

[See also “R.S. 29: 724. Powers of the governor A. The governor is responsible for meeting the dangers to the state

and people presented by emergencies or disasters, and in order to effectuatethe provisions of this Chapter, the governor may issue executive orders,proclamations, and regulations and amend or rescind them. Executiveorders, proclamations, and regulations so issued shall have the force andeffect of law..........................D. In addition to any other powers conferredupon the governor by law, he may do any or all of the following:

(1) Suspend the provisions of any regulatory statute prescribing theprocedures for conduct of state business, or the orders, rules, or regulationsof any state agency, if strict compliance with the provisions of any statute,order, rule, or regulation would in any way prevent, hinder, or delaynecessary action in coping with the emergency.”]

[See also, lasc.org - August 31, 2021 - Louisiana Supreme Court Orders“Additionally, Chief Justice Weimer, acting under the authority of Louisiana CivilCode Article 3472.1 and Louisiana Code of Civil Procedure Article 562, andconsidering the state of emergency declared statewide by Governor John BelEdwards as a result of then-Tropical Storm Ida in Proclamation 165 JBE 2021 onAugust 26, 2021 and the catastrophic damage that Hurricane Ida has caused in thestate released the following Order:IT IS FURTHER ORDERED THAT:

Emergency suspension of prescription and peremption: All prescriptive andperemptive periods are hereby suspended statewide for a period of thirty dayscommencing from the Governor’s August 26, 2021 declaration of state ofemergency.

Emergency suspension of abandonment: All periods of abandonment arehereby suspended statewide for thirty days commencing from the Governor’sAugust 26, 2021 declaration of state of emergency.”]

[ADDITIONAL QUESTION: Does this make any difference at all? - La. Const.Art. 3, Section 20 - “§20. Suspension of Laws

Section 20. Only the legislature may suspend a law, and then only by thesame vote and, except for gubernatorial veto and time limitations for introduction,according to the same procedures and formalities required for enactment of thatlaw. After the effective date of this constitution, every resolution suspending a lawshall fix the period of suspension, which shall not extend beyond the sixtieth dayafter final adjournment of the next regular session.” (emphasis added).]

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(2) De La Rosa v. King, 2021 WL 4845787 (E.D. Louisiana), 10/18/21 - motion todismiss on prescription granted. Court stated in part:

“Defendants note that Governor John Bel Edwards’ ProclamationJBE-2020-30 (the “2020-30 Proclamation”) suspended legal deadlines due to theCOVID-19 pandemic.16 However, Defendants contend that the 2020-30Proclamation, which was extended numerous times by Governor Edwards andeventually codified by the Louisiana legislature in Louisiana Revised Statute §9:5830, only suspended legal deadlines that expired between March 17, 2020 andJuly 5, 2020.17 Given that Plaintiff's deadline to file this suit was January 22,2021, a year after the alleged accident on January 22, 2020, Defendants argue thatPlaintiff's claims were not affected by the Governor's proclamations and aretherefore prescribed.18B. Plaintiff's Arguments in Opposition to the Motion

In opposition, Plaintiff does not dispute that Louisiana Revised Statutes §§9:5828–5830 suspended the prescriptive period for only claims that expiredbetween March 17, 2020 through July 5, 2020.19 Plaintiff contends, however, thatthese statutes run counter to Louisiana Civil Code Article 3472, which providesthat a period of suspension should not be counted against a prescriptive period butinstead that a prescriptive period begins to run again at the termination of asuspension period.20

Further, Plaintiff claims that Governor Edwards signed a separate executiveorder following the 2020-30 Proclamation and the enactment of Louisiana RevisedStatutes §§ 9:5828–5830, Proclamation 2020-84 (the “2020-84 Proclamation”),which suspended prescriptive periods between March 17, 2020 and July 5, 2020without any limiting language.21 Plaintiff argues that Proclamation 2020-84therefore applied to suspend his claims for 112 days.22 Thus, Plaintiff contendsthat his claim is not untimely.23C. Defendants’ Arguments in Further Support of the Motion

In reply, Defendants contend that Louisiana Revised Statutes §§9:5828–5830 and the limiting language found therein also apply to the 2020-84Proclamation.24 Defendants argue that the language of the statutes indicate that thestatutes, including the limitations on prescription, are meant to apply to all futureextensions of the 2020-30 Proclamation, which Defendants allege includes the2020-84 Proclamation.25 Moreover, Defendants contend that the legislative historymakes clear that the statutes are meant to preempt any conflicting statutes,including Louisiana Civil Code Article 3472.26..................................Thedisagreement among the parties, therefore, hinges on whether Plaintiff's claimswere suspended under proclamations issued by Governor Edwards during theCOVID-19 pandemic and which were later ratified by the legislature in LouisianaRevised Statutes §§ 9:5828–5830. Defendants contend that Plaintiff's claim wasunaffected by the executive orders and the statutes because they only served tosuspend deadlines that expired between March 17, 2020 and July 5, 2020. Giventhat Plaintiff's prescriptive period expired on January 22, 2021, Defendants argue

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that Plaintiff's claims were not suspended. In opposition, Plaintiff argues his claimswere suspended and therefore this suit is timely.

Due to the COVID-19 pandemic, Louisiana Governor John Bel Edwardsissued Proclamation Number 25 JBE 2020 (the “2020-25 Proclamation”) on March11, 2020, titled “Public Health Emergency – COVID-19.”37 In the 2020-25Proclamation, Governor Edwards declared a statewide public health emergency.38Thereafter, on March 16, 2020, Governor Edwards issued the 2020-30Proclamation, titled “Additional Measures for COVID-19 Public HealthEmergency.”39 The 2020-30 Proclamation provided for additional COVID-19related measures, including ordering that “[l]egal deadlines, including liberativeprescription and peremptive periods applicable to legal proceedings in all courts,administrative agencies, and boards, are hereby suspended until at least Monday,April 13, 2020.”40 On April 2, 2020, Governor Edwards extended this suspensionof legal deadlines until April 30, 2020.41 On April 30, 2020, Governor Edwardsagain extended the suspension of legal deadlines until May 15, 2020.42 On May14, 2020, Governor Edwards once again extended the suspension of legal deadlinesto June 5, 2020.43 On June 4, 2020, Governor Edwards suspended legal deadlinesuntil June 15, 2020.44

Thereafter, the Louisiana legislature passed Louisiana Revised Statutes §§9:5828–5830, effective as of June 9, 2020 but to be applied retroactively.45Through the statutes, the legislature sought to “approve[ ], ratif[y], and confirm[ ]”the suspension of legal deadlines found first in the 2020-30 Proclamation andthereafter extended in later proclamations. The statutes cabined the effect of suchproclamations to suspend only those legal deadlines that expired between March17, 2020, and July 5, 2020...................................The plain language of thesestatutes makes clear that only legal deadlines that expired between March 17, 2020and July 5, 2020 were suspended. Thus, the prescriptive period for Plaintiff'sclaim, for which the deadline to file was January 22, 2021, was not affected by thestatutes.46

Despite acknowledging that the statutes sought to “modify the effect of thesuspension of prescription and statutorily limit it to a certain time period, March17, 2020 – July 5, 2020,” Plaintiff argues that his claim was separately suspendedby the 2020-84 Proclamation, issued on June 25, 2020, after the enactment ofLouisiana Revised Statutes §§ 9:5828–5830.47 The 2020-84 Proclamationprovides that “[l]iberative prescriptive and peremptive periods applicable to legalproceedings in all courts, administrative agencies, and boards are suspendedthrough July 5, 2020.” Plaintiff argues that because the 2020-84 Proclamation,unlike Louisiana Revised Statutes §§ 9:5828–5830, did not contain limitinglanguage indicating that it only applied to claims that expired between March 17,2020 and July 5, 2020, such proclamation applied to suspend all legal deadlines,including Plaintiff's, for 112 days.

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Plaintiff's argument fails to account, however, for the plain language ofLouisiana Revised Statutes §§ 9:5828–5830. In passing such statutes, thelegislature clearly provided that any extensions of the 2020-30 Proclamation weresubject to the terms of the statutes, including the language limiting suspension todeadlines expiring between March 17, 2020 and July 5, 2020 found therein.48

The 2020-84 Proclamation is one of many extensions of the 2020-30Proclamation. The language of the 2020-84 Proclamation mirrors that of the2020-30 Proclamation while extending the suspension period to July 5, 2020. The2020-84 Proclamation's title further confirms its status as an extension of the2020-30 Proclamation, as it is titled “Renewal of State of Emergency forCOVID-19 Extension of Emergency Provisions.”49 The Office of the Governor'swebsite summarizes the 2020-84 Proclamation as a “COVID-19 Extension ofEmergency Provisions.”50

Therefore, the 2020-84 Proclamation is subject to Louisiana RevisedStatutes §§ 9:5828–5830 and only provides for a suspension of legal deadlines forclaims that expired between March 17, 2020 and July 5, 2020. Given that theprescriptive period for Plaintiff's claims did not expire within this time, Plaintiffhad one year to file suit. Plaintiff failed to do so and thus, his claims againstDefendants relating to the January 22, 2020 car accident prescribed prior toPlaintiff's filing of the instant suit.” (footnotes omitted).

(3) Aples v. Administrators of Tulane Educational Trust - Slip Copy 2021 WL1123560 (E.D. Louisiana 2021) - “Plaintiffs first argue that their claims becametime-barred only on January 25, 2021, because prescription was suspended inLouisiana for 142 days as a result of the COVID-19 pandemic and HurricaneLaura. As to the COVID-19 pandemic, Plaintiffs’ argument ignores the relevantlaw and lacks merit. It is true that the Louisiana suspended prescription fromMarch 17, 2020 until July 5, 2020 by executive order.62 But the legislature laternarrowed that suspension, enacting La. R.S. 9:5829, which provides: “thesuspension or extension of these periods shall be limited and shall apply only ifthese periods would have otherwise expired during the time period of March 17,2020, through July 5, 2020.”63 Plaintiffs fail to either include or address this law.No subsequent executive order overrode this language, as the legislature alsoprovided with respect to the executives orders that “any extensions thereof arehereby approved, ratified, and confirmed subject to the provisions of this part.”64Because Plaintiffs’ claims would not have expired between March 17, 2020 andJuly 5, 2020, the period of prescription on their claims was never suspended by thesuspension related to COVID-19.65" (footnotes omitted).

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F. Retroactivity:

(1) Oak Haven Management LLC v. Starr Surplus Lines Insurance Co., Slip Copy2021 WL 4134033 (W.D. Louisiana 2021) - 2020 amendment to forum selectionstatute given retroactive effect and Motion to Dismiss denied.

“ The statute was amended in 2020, effective August 1 of that year, withthe addition of “or venue” at § 22:868(A)(2)—resulting in a clear limitationon forum selection clauses. See 2020 La. Sess. Law Serv. Act 307 (S.B.156) (WEST). State and federal courts have found similar statutes to evincea strong public policy against forum selection clauses in other types ofcontracts.2 Defendant argues, however, that the court must hew to the priorversion of the statute rather than retroactively applying the amendedversion. As the United States Supreme Court has observed:

A statute does not operate “retrospectively” merely because it isapplied in a case arising from conduct antedating the statute'senactment, or upsets expectations based in prior law. Rather thecourt must ask whether the new provision attaches new legalconsequences to events completed before its enactment.

Landgraf v. USI Film Products, 511 U.S. 244, 269, 114 S.Ct. 1483, 1499,128 L.Ed.2d 229, 254 (1994) (internal citations omitted), quoted in Walls v.Am. Optical Corp., 740 So.2d 1262, 1266 (1999).

The Louisiana Supreme Court holds that a statute only actsretroactively when it “either (1) evaluates the conditions of the legality of apast act, or (2) modifies or suppresses the effects of a right alreadyacquired.” Walls, 740 So.2d at 1267. On the first question, it is the presentenforceability of the forum selection clause that concerns the court. On thesecond, plaintiff's cause of action—and therefore defendant's right toinvoke the forum selection clause—did not accrue until after the statute'samendment. Like the statutory employer defense (Louisiana RevisedStatute § 23:1032) under consideration in Walls, § 22:868(A) is notproperly characterized as a substantive law or one governing defendant'spast conduct. Instead, it is a procedural limitation on the right of defendantinsurers to transfer suits to out-of-state courts. Even if the cause of actionhad accrued before the statute's amendment, the Louisiana Supreme Courthas also determined that laws prohibiting forum selection clauses areprocedural in nature and may be applied retroactively to causes of actionaccruing before their effective date unless the legislature expressesotherwise. Sawicki v. K/S Savanger Prince, 802 So.2d 598 (La. 2001). Theapplication of § 22:868(A), as amended, thus poses no retroactivityproblems.

The court also rejects defendant's argument that the reference to“courts of this state” limits the statute's application to cases filed in statecourts. Defendant provides no support for this assertion, and such languagehas been held to embrace the federal courts sitting within a state. E.g.,

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Woods v. Interstate Realty Co., 337 U.S. 535, 538 (1949) (holding that astatute prohibiting certain persons from bringing suit in Mississippi under astatement prohibiting suits “in courts of this State” applied to Mississippifederal courts).

In its reply brief, defendant notes that § 22:868(D), which wasenacted at the same time as the amendment to § 22:868(A), permits forumselection clauses in insurance contracts not subject to regulation by theDepartment of Insurance. It maintains that this provision undermines anydetermination that the statute contains a strong public policy directiveagainst forum selection clauses. The court rejects this argument. The factthat the legislature regards some insurance contracts as beyond its reachdoes not show that the limitations are any less important for the contractsthat are governed by the statute. The fact that the legislation was passed sorecently, and so soon after the Fifth Circuit determined that the priorversion of § 22:868(A) had no effect against forum selection clauses,further supports its significance in state policy concerns. As with the casescited supra at note 2, the Louisiana legislature's prohibition against forumselection clauses in insurance contracts reflects a strong public interest inhaving disputes over policies covering Louisiana residents or propertydecided locally. Accordingly, the forum selection clause is unenforceable inthis matter.” (footnotes omitted).

(2) Haygood v. Louisiana State Board of Dentistry, 2021 WL 1438723 (La.App. 1Cir. 4/16/21)(unpublished), writ denied, 324 So.3d 98 (La. 2021) - In 2016, dentistentered into consent decree with Board of Dentistry. Consent decree included“nondisparagemnt” clause, providing that dentist “shall not, directly or indirectly,himself or through others, publish or make any disparaging or critical remarksverbally or in writing about the Board or any of the Board Parties for any activitiesoccurring prior to the date the President signs this [consent decree] on behalf of theBoard.”

In 2018, dentist testified before Legislature regarding his case before theBoard. Testimony was in conjunction with the passage of Senate Bill 29, whichsought to prohibit nondisparagemnt agreements between professional licensingboards and licensees. The bill was enacted into law as La. R.S. 37:23.3 and becameeffective on August 1, 2019.

In response to dentist’s testimony before the Legislature, the Boardnotified him that disciplinary proceedings would be brought against him; however,the charges were dismissed by the Board prior to the 2019 disciplinary hearing.After the disciplinary charges were dismissed, dentist filed suit to have the consentdecree rescinded on various grounds. Trial court dismissed petition on defendant’smotion for summary judgment. On appeal, affirmed.

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Court stated in part:“Dr. Haygood also claimed that La. R.S. 37:23.3 should be applied

retroactively, and therefore the nondisparagemnt clause of the consentdecree should be rendered null and void. Louisiana Revised Statutes,37:23.3 states, in pertinent part:

A. No professional or occupational licensing board or commissionshall:

(1) Enter into a consent decree with a licensee, permitee, orcertificate holder if such decree contains a nondisparagemnt clause.Such a nondisparagemnt clause **8 contained in a consent decree iscontrary to public policy of this state and shall be null, void, andunenforceable.

(2) Initiate disciplinary action against a licensee, permitee,or certificate holder for providing testimony or records to alegislative body.Substantive laws establish new rules, rights, and duties or change

existing ones; procedural laws prescribe a method for enforcing asubstantive right and relate to the form of the proceeding or the operation ofthe laws. Segura v. Frank, 630 So.2d 714, 723, cert. denied, 511 U.S. 1142,114 S.Ct. 2165 (1994). Louisiana Revised Statutes 37:23.3 established anew rule and duty upon the Board to not enter into nondisparagemntclauses or discipline a licensee for testifying before the state legislature, asDr. Haygood did. The statute is therefore substantive in nature. In theabsence of contrary legislative expression, substantive laws applyprospectively only. La. C.C. art. 6. Furthermore, a law may not be appliedretroactively if it would impair contractual obligations or disturb vestedrights. Segura, at 721.

Since La. R.S. 37:23.3 has no explicit language about retroactiveapplication, it is not a retroactive law. Also, since a retroactive applicationwould have a direct effect on the obligations that Dr. Haygood and theBoard agreed to in the consent decree, it cannot be applied retroactively forthat reason. Therefore, the consent decree is not void due to the subsequentenactment of La. R.S. 37:23.3.”

[Note: That an act is silent as to retroactive or prospectiveapplication does not automatically mean it is prospective. As it didin this case, the court must perform an analysis under Civil CodeArticle 6 to make that determination. Civil Code Article 6 and R.S.1:2 are coextensive in application. Also, as a public entity, theBoard cannot claim constitutional protections against disturbing ofvested rights or impairment of contracts.]

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G. Standing/”Constitutional Rights” of School Board as Public Entity:

(1) Harrison v. Jefferson Parish School Board, 2021 WL 3286456 (E.D. Louisiana2021) - BB guns seen in remote learning led to students being suspended.Litigation and legislation ensued.

School Board brought counterclaim in litigation, seeking declaratoryjudgment that retroactive application of Act 48 as provided in Act wasunconstitutional as a deprivation of property without due process under theFourteenth Amendment and Article I § 2 of the Louisiana Constitution, and that ithad a “vested property right in the public funds allocated to it which are needed tooperate all public schools in Jefferson Parish, pay the salaries and wages ofteachers, staff members, administrators, and other individuals, and provide for thesafety and well-being of all students within the Jefferson Parish Public SchoolSystem.” Court denied claim and granted motion to dismiss.

Court stated in part “In the instant motion, the State seeks dismissal ofJPSB's counterclaim for two main reasons: (i) JPSB, as a politicalsubdivision of the State, has no rights under the Fourteenth Amendment orArticle I § 2 of the Louisiana Constitution and cannot sue the State ofwhich it is a part................

In response, JPSB contends that because it seeks a declaratoryjudgment and meets the requirements of the Declaratory Judgment Act, ithas the right to sue the State.72 JPSB further claims that directing itscounterclaim at Plaintiffs is proper because the counterclaim seeks adeclaratory judgment “that the law Plaintiffs have placed at issue and uponwhich they seek damages is unconstitutional.”73A. Whether JPSB Has Standing to Sue the State

The State argues that JPSB, as a political subdivision and not a“person,” has no rights under the Fourteenth Amendment or Article I § 2 ofthe Louisiana Constitution.74 The State further argues that JPSB, as apolitical subdivision of the State, cannot sue the State and therefore, JPSB'scounterclaim is so “patently insubstantial” as to warrant dismissal.75

The Louisiana Constitution defines a political subdivision as “aparish, municipality, and any other unit of local government, including aschool board and a special district, authorized by law to performgovernmental functions.”76 Clearly, then, JPSB is a political subdivision ofthe State of Louisiana.77 JPSB does not dispute this, as it refers to itself inthe counterclaim as “JPSB, in its capacity as a political subdivision of theState of Louisiana....”78

Generally, a political subdivision cannot sue the state that createdit. The Supreme Court has specifically held that “a political subdivision,created by a state for the better ordering of government, has no privileges orimmunities under the federal constitution which it may invoke inopposition to the will of its creator.”79 The Fifth Circuit has likewise statedthat “public entities which are political subdivisions of states do not possess

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constitutional rights”80 and noted that there exists a “substantive principlethat the Constitution does not interfere with a state's internal politicalorganization.”81

The Supreme Court has described political subdivisions as“subordinate governmental instrumentalities created by the State to assist inthe carrying out of state governmental functions.”82 “State politicalsubdivisions are ‘merely ... department [s] of the State, and the State maywithhold, grant or withdraw powers and privileges as it sees fit.’ ”83Likewise, the Fifth Circuit has affirmed that a political subdivision “lack[s]standing to challenge state legislation.”84

There are two exceptions to this general rule. First, a subdivisioncan sue a state when challenging state action under the Supremacy Clause.In Rogers v. Brockette, cited by JPSB, the Fifth Circuit held that a schoolboard had standing to sue the State of Texas under the Supremacy Clause,challenging a state statute requiring school districts to provide subsidizedbreakfast for students.85 In making this determination, the court reviewedcaselaw dealing with whether or not a municipality had standing to sue thestate that created it.86 The court cited extensive caselaw in which federalcourts had held that a municipality could not bring a suit against a state inthe context of the Contract Clause, the Just Compensation Clause, the DueProcess Clause, the Equal Protection clause, and the FourteenthAmendment.87 After providing this background, the Fifth Circuitdisavowed the general proposition “that a municipality never has standingto sue the state of which it is a creature” but instead held that the pastcaselaw was “substantive interpretations of the constitutional provisionsinvolved.”88 Applying this analysis to the Supremacy Clause, the courtheld that the school board could sue the State of Texas.89

While Rogers did affirm the ability of the school board to sue theState of Texas, its holding focuses narrowly on standing to sue under theSupremacy Clause. The court noted that past caselaw on the issue ofwhether a subdivision could sue a state under other constitutionalprovisions, in which courts answered in the negative, was not relevant inthe context of the Supremacy Clause specifically because “there is everyreason to think that Congress may interfere with a state's internal politicalorganization in ways that the Constitution itself does not interfere.”90

Even while holding that a subdivision could sue a state under theSupremacy Clause, the Fifth Circuit in Rogers expressly affirmed that othercourts had already decided the issue of whether subdivisions could bringsuit against a state for other constitutional violations, including the DueProcess Clause and the Fourteenth Amendment, and determined that theanswer was no.91 According to the Rogers court, past caselaw confirmedthat “the Constitution does not interfere in the internal politicalorganization of states” including in cases involving the Due Process Clauseand the Fourteenth Amendment.92 Therefore, while Rogers may provide

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support for an argument that school boards have standing to sue within thecontext of the Supremacy Clause, it expressly rejects JPSB's argument thata school board can bring a claim against a state under the Due ProcessClause or the Fourteenth Amendment, as JPSB attempts to do here.

Other courts analyzing Rogers have found that “Rogers requires ananalysis of the constitutional provisions involved in the case. If a provisionis written to protect individual rights, as opposed to collective or structuralrights, it does not apply to the political subdivision and, therefore, thesubdivision may not bring the claim against its own state.”93 “However,where a suit by a political subdivision against its state creator is based on aconstitutional provision that protects structural rights—such as theSupremacy Clause—the political subdivision may sue its state.”94Applying this analysis, other courts in this district have held that politicalsubdivisions have no right to sue a state under the Fourteenth Amendmentas such provision is meant to protect individual rights, not structuralrights.95 Therefore, applying Rogers, JPSB's counterclaim under the DueProcess Clause and the Fourteenth Amendment fails.

Second, the Supreme Court has allowed suits by a politicalsubdivision against a state under a “ ‘dilemma’ theory of standing.”96 InBoard of Education of Central School District No. 1 v. Allen, the State ofNew York passed a law requiring local school to provide free textbooksto public and private school students.97 The Board of Education of CentralSchool District No. 1 brought suit against the Commissioner of Educationof New York, alleging that the law violated the Establishment and FreeExercise Clauses of the First and Fourteenth Amendments.98 Whilestanding was not disputed, the Supreme Court nevertheless noted that theschool board had standing to bring the suit because board members hadtaken an oath to support the United States Constitution and “[b]elieving[the statute] to be unconstitutional, they are in the position of having tochoose between violating their oath and taking a step–refusal to complywith [the statute]–that would be likely to bring their expulsion from officeand also a reduction in state funds for their school districts.”99

At oral argument, JPSB asserted that Allen supports a finding thatit has standing to bring the instant counterclaim, but this case is easilydistinguishable.100 Unlike the school board in Allen that faced thepotential of affirmatively violating the First Amendment if they followedthe New York law, thereby leaving the school board in a constitutionaldilemma, JPSB is not faced with the possibility of violating theConstitution by following Act 48.

JPSB's final argument is that the counterclaim at issue is differentthan other cases that found a lack of standing for a political subdivisionsuing a state because the claims here involve a declaratory judgment anddismissal based on standing would be “squarely at odds with the purpose ofthe Declaratory Judgment Act to allow this Court to declare the rights and

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other legal relations of any interested party seeking such declaration,whether or not further relief is or could be sought.”101 JPSB fails toprovide any caselaw showing that declaratory judgments are treateddifferently from other types of relief in the context of suits brought by apolitical subdivision against the State. That JPSB seeks a declaratoryjudgment as its requested relief does not change the fact that JPSB mustfirst show standing, which it cannot do with regards to its claims against theState.102

Contrary to JPSB's position, courts have considered cases involvingpolitical subdivisions seeking declaratory judgment against a state and haveheld that in such cases there exists the same bar to suit as in cases involvingother forms of relief.103 In Appling City v. Municipal Electric Authority ofGeorgia, a county in Georgia brought suit against Georgia Power,requesting a declaratory judgment pursuant to the Equal Protection Clause,Due Process Clause, and Contract Clause that Georgia Power owed taxeson a nuclear plant.104 Defendant Georgia Power moved to dismiss the suiton the grounds that the court lacked subject matter jurisdiction over thesuit.105 The district court granted the motion, and the Fifth Circuitaffirmed “on the basis of the order of the district court” without includingany additional reasoning.106

In the district court opinion, the court noted that “[o]f course, thefact that the plaintiffs seek declaratory relief under 28 U.S.C. § 2201, doesnot absolve them of the necessity of bringing themselves within ajurisdictional statute.”107 The court then went on to dismiss the plaintiffcounty's claims, finding that “the County's claims should also be dismissedbecause the County has no standing to invoke the federal Constitutionalguarantees of due process and equal protection against an enactment of theState of Georgia.”108 The court further rejected the county's arguments thatit was a “person within the meaning of the Fourteenth Amendment.”109

Based on the foregoing, JPSB lacks standing to sue the State andJPSB's counterclaim against the State must be dismissed.” (footnotesomitted).

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H. 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.No branch of government shall exercise power belonging to the other branches,except as otherwise provided by the constitution. La. Const. Art. II, §§1 and 2. (Seealso, Hargrave, The Louisiana State Constitution: A Reference Guide, noting onpage 43 that the 1974 constitution "blurs the distinction as to which powers areexecutive, legislative and judicial.")

(2) The above statement notwithstanding, it is clear that the determination oflegislative intent is part of statutory construction and thus the sole province of thejudiciary. Statutory interpretation and the construction to be given to legislativeacts are matters of law and rest with the judicial branch of government. It has longbeen established that `[i]t is emphatically the province and the duty of the judicialdepartment to say what the law is.' Bourgeois v. A.P. Green Industries, Inc., et al.,783 So.2d 1251, 1260 (La. 2001) (internal citations omitted). The interpretation ofthe law belongs to the judiciary, and not the Legislature. Mallard Bay Drilling, Inc.v. Kennedy, 914 So.2d 533, 544 (La. 2005). As a matter of law, statutoryinterpretation is subject to de novo review by appellate courts. Holly & SmithArchitects, Inc. v. St. Helena Congregate 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 to consider atall, 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 thelegislative record as both appropriate for consideration and "conclusive" on thequestion of intent.

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(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 thetext of 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 prohibitedlegislative "intent" may arise where fundamental constitutional rights areinvolved, such as equal protection, first amendment, and dormantcommerce matters. See, e.g., Fallon, Constitutionally Forbidden LegislativeIntent, 130 Harv. L. Rev. 523 (2016); Dorf, Even A Dog: A Response toProfessor Fallon, 130 Harv. L. Rev. F. 86 (2016); Nelson, Judicial Reviewof Legislative Purpose, 83 N.Y.U. L. Rev. 1784 (2008). But, discussing thegood faith presumption of state legislatures against such claimeddiscriminatory intent and the evidence to be considered, see, Fusilier v.Landry, 963 F.3d 447 (U.S. 5th Cir. 2020).]

(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), 934 So.2d745, 748, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288."

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(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."

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 legislative historymay 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 and timelimitations 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 enactment oflaw 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.

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(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 committeeof the legislature, shall not constitute proof or indicia of legislative intent."[emphasis added]

(7) Courts 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 Ethics inMatter 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 be ascertainedby the application of the provisions of Chapter 2 of the Preliminary Title ofthe Louisiana Civil Code and Chapter 1 of Title 1 of the Louisiana RevisedStatutes of 1950,” that “the court shall consider the intent of thelegislature.” 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.3d 862(La. App. 1 Cir. 2017); New Orleans Bulldog Society v. Louisiana Societyfor the Prevention of Cruelty to Animals, 222 So.3d 679 (La. 2017);Medine's Collision Center, LLC v. Progressive Direct Ins. Co., 199 So.3d38 (La. App. 1 Cir. 2016); Rebel Distributors Corp., Inc. v. LUBA Workers'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).

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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 on Louisiana'sown statute proscribing this use. See La. R.S. 24:177(E)(3) ( “Committeeminutes ... shall not constitute proof or indicia of legislative intent.”). Yet itis the purpose and effect of the statute that are paramount, not the absenceof a legislative preamble evidencing the legislature's intent or the presenceof legislative committee minutes. The Court finds that in this case the textand context of the law alone sufficiently demonstrate the purpose and effectof the law. See La. R.S. 24:177(B)(1)(“The text is the best evidence oflegislative 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 that describesa bill or resolution. It appears on the bill or resolution after the keyword andbefore the heading ... and may be referred to as ‘summary.’ ” Id. While notconstituting a part of the proposed law, the keyword and one-liner areintended “to provide the members of the legislature with general indicia ofthe content of the bill.” La. R.S. 24:177(E)(1). In this case, the keyword andone-liner initially appearing in HB 976 recited: “SCHOOLS/CHOICE:Provides relative to the Student Scholarships for Educational ExcellenceProgram, parent petitions for certain schools to be transferred to the RSD,charter school authorizers, and course providers.”

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(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 statutory interpretation andthe construction given to legislative acts rests with the judicial branch ofgovernment.... [I]nterpreting the law is the designated function of thejudiciary, not the Legislature."). We have also long held: "[i]n many cases,the legislative history of an act and contemporaneous circumstances may behelpful 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).

(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'rs Courtof Appeal of Louisiana, 168 So.3d 727 (La. App. 1 Cir. 2014), Peck v.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 State EmployeesAssociation v. State, 119 So.3d 568 (La. 2013).

[NOTE: Digests, one-liners, etc. are prepared by staff and are not subject tocommittee or floor amendment. Comments prepared by the Law Instituteare also not subject to revision by committee or floor amendment.]

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(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 broadcasts stillconstitute part of the "legislative history" available from the legislature. Given theircompleteness and ease of access, courts have been willing to utilize them in orderto consider committee discussion and floor debate in reviewing legislative history----although such consideration is (or should be) still subject to the same concerns asto what "discussion and debate" should be deemed adequate in fact to be deemedappropriate "proof" of the "intent" of the entire voting body of both houses of theLegislature.

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VI. SELECTED ARTICLES OF INTEREST:

Harvard Law Review Association, CONSTITUTIONAL LAW--FIRSTAMENDMENT--FIFTH CIRCUIT CREATES CIRCUIT SPLIT BY FINDING ALEGISLATURE'S CENSURE CAN VIOLATE THE FIRST AMENDMENT.-- WILSONv. HOUSTON COMMUNITY COLLEGE SYSTEM, 955 F.3D 490 (5TH CIR. 2020),134 Harv. L. Rev. 2638 (May, 2021)

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 not allowedin 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 this Park."

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, whoseermined dignitaries delight in pointing out the shortcomings of the legislature in approvingsuch 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 of ParliamentaryCounsel).

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 Ohio court.

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 constitutional attackand 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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