Category: Constitutional Law

COVID-19 Case Presents Interesting Constitutional and Procedural Issues

COVID-19 stretched our legal system and raised questions not easily answered by existing law.  One recent question surrounds a dispute between the Governor and the State Legislature regarding the constitutionality of the Governor’s proclamation of a public health emergency in response to COVID-19.  Recently, in Governor John Bel Edwards v. Louisiana State Legislature, Louisiana House of Representatives, & Clay Schexnayder, in his official capacity as Speaker of the House of Representatives, 2020-CA-1407, the Louisiana Supreme Court was asked to gauge the validity of the legislature’s termination of Governor Edwards’ proclamation. However, the Court did not reach the constitutional questions and remanded the case.

The Governor filed suit to challenge the Legislature’s termination of his COVID-19 proclamation. He argued that the termination was null and void citing both constitutional and non-constitutional grounds.  Because the trial court found the termination unconstitutional, it did not address the procedural and non-constitutional challenges raised.

On appeal, the Supreme Court held that the trial court erred in reaching the issue of constitutionality prior to determining whether the dispute could be resolved on non-constitutional grounds.  Louisiana law dictates that courts should avoid decisions based upon constitutional grounds unless the constitutional issue is essential to resolution of the case.  Although the issues to be addressed were important to the citizens of Louisiana, the Court stated “it is critical a case must reach this court in the proper procedural posture to warrant our review of a ruling on constitutionality.” 

The case highlights the role of the Louisiana Supreme Court and reminds both attorneys and the public of how issues are addressed and decided.  The Court was express that the issues presented in Edwards were novel and important and may ultimately be issues the high court will choose to address.  However, the Court recognized that its powers of constitutional review are constrained by procedure.    A civics lesson in the midst of the COVID-19 pandemic.


Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense.  When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.

Smart Phones: Dangerous Weapons?

In Riley v. California, 134 S. Ct. 2473, 2477, 189 L. Ed. 2d 430 (2014), the Supreme Court considered whether police officers could search the contents of a smart phone incident to an arrest. In Riley, an alleged gang member was arrested for possession of a concealed firearm. At the precinct, a police officer went through the arrestee’s smart phone looking for evidence of other crimes and found a picture of the arrestee next to a car connected to a drive-by-shooting.

Keogh Cox Maintains Its Victory at the U.S. Supreme Court

Keogh Cox obtained dismissal of the suit asserted against the Sabine River Authority of Louisiana and Entergy by numerous plaintiff landowners alleging flood damages.  Plaintiffs alleged their state law negligence and constitutional claims were preserved under Section 10(c) of the Federal Power Act [16 U.S.C. § 803], which provides that the licensee is liable for “all damages occasioned by the … operation of the project works.” Because the Toledo Bend Dam was not designed or licensed as a flood control dam, Keogh Cox argued on behalf of its clients that this provision does not permit claims based on conduct not required under the FERC license. To do so, Keogh Cox argued, amounts to a collateral attack of the FERC license and wrests operational control of the licensed project away from the Federal Energy Regulatory Commission [FERC] and places it in the hands of a trial judge.

Lawsuit “Tripped Up” by Open and Obvious Defense

Louisiana premises liability law continues to evolve in the wake of the Louisiana Supreme Court’s decision in Broussard v. State, 113 So.3d 175 (La. 2013). The Broussard decision was believed to limit the application of the open and obvious defense in the context of a Motion for Summary Judgment on liability.

“Cash Balance” Retirement Plan Bounces

The Louisiana Supreme Court recently held that the enactment of the “Cash Balance Plan” was unconstitutional. See The Retired State Employees, Association et. al v. The State of Louisiana et. al., 2013-0499, – So.3d -. The Cash Balance Plan is a 401-k style retirement plan that was to be put in place for state employees, including teachers, hired after July 1, 2014.

The key issues in The Retired State Employees litigation were: 1) whether the Cash Balance Plan was a new retirement plan or merely a modification of an existing retirement plan; and 2) whether the Cash Balance Plan had an “actuarial cost.” If the Cash Balance Plan was a new plan or had an actuarial cost, a two-thirds vote would be required to pass the legislation rather than a mere majority of votes under Louisiana Constitution Article X, § 29(F).

Six Little Letters

tenure (ten’yer) 

1. The status of holding one’s position on a permanent basis without periodic contract renewals; example: a teacher granted tenure on a faculty.

Court Cannot Vouch for Voucher Funding

The Louisiana Supreme Court has ruled 6-1 that the funding method for the private school tuition voucher program approved by the Legislature last year is unconstitutional under La. Const. art. VIII, Sect. 13(B). The decision leaves uncertain the status of the approximately 8,000 students who had been approved for vouchers for the 2013-2014 school year.

What Happens Outside of Vegas?

The United States Supreme Court recently granted writs in a case that could affect the minimum contacts test used to find jurisdiction were a similar case brought in Louisiana. See Walden v. Fiore, 688 F. 3d 558 (2011). In Walden, the United States Supreme Court will decide whether to uphold the Ninth Circuit’s ruling that a court may exercise personal jurisdiction over a defendant whose primary contact with the forum state was his knowledge that the plaintiffs had connections to that state.

A Presumption of Constitutionality

The Louisiana Supreme Court recently upheld as constitutional two statutes requiring the registration of sex offenders even when applied to a person who was found not guilty by reason of insanity. See State of Louisiana v. Isaiah Overstreet, Jr., 12 – 1854 (La. 3/19/13). While an ultimate resolution of this issue would cause the Court to measure the asserted personal interests of the defendant against the public’s interest in safety, the defendant’s challenges were rejected because he failed to properly raise and brief the constitutional issues.