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The Louisiana Department of Justice and Jefflandry v. Edwards

Court of Appeals of Louisiana, First Circuit

November 1, 2017

THE LOUISIANA DEPARTMENT OF JUSTICE AND JEFFLANDRY, IN HIS OFFICIAL CAPACITY AS ATTORNEYGENERAL FOR THE STATE OF LOUISIANA
v.
JOHN BEL EDWARDS, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF LOUISIANA

         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 652, 283 Honorable Todd W. Hernandez, Judge Presiding

          Elizabeth Baker Murrill Wilbur L. Stiles, III Angelique D. Freel Baton Rouge, LA Attorneys for Plaintiffs-Appellees, the Louisiana Department of Justice and Jeff Landry, in his official capacity as Attorney General for the State of Louisiana.

          Matthew F. Block Megan K. Terrell Donald W. Price Mary Olive Pierson Baton Rouge, LA Attorneys for Defendant-Appellant, John Bel Edwards, in his official capacity as Governor of the State of Louisiana

          Christopher T. Victory Shreveport, LA Attorney for Intervenors, Hon. Beryl A. Amedee, et al.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HIGGINBOTHAM, J.

         This appeal centers on an Executive Order issued by the Governor of the State of Louisiana and challenges the legal authority and discretion of two elected state officials, the Governor and the Attorney General, relating to anti-discrimination language included in all state services, state contracts, and employment by the state.

         FACTS AND PROCEDURAL HISTORY

         The facts are not in dispute. On April 13, 2016, Governor John Bel Edwards issued Executive Order No. JBE 2016-11 ("Executive Order"), concerning "EQUAL OPPORTUNITY AND NON-DISCRIMINATION" in all state services, all employment by the state, and all state contracts for the purchase of services. The Executive Order specifically required that, effective July 1, 2016, all state contracts for the purchase of services must include a provision that the contractor shall not discriminate on the basis of "race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability, or age" of the persons seeking such contracts or in any matter relating to employment.[1] The Executive Order further directed all "state agencies, departments, offices, commissions, boards, entities, or officers of the State of Louisiana, or any political subdivision ... to cooperate with the implementation of the provisions" of the Executive Order. In accordance with the Executive Order, the Division of Administration, through the Office of State Procurement, began notifying contractors of the need to revise all professional services contract documents, including legal service contracts, to comply with the new anti-discrimination provision by adding the terms "sexual orientation" and "gender identity" so that the contracts could be reviewed and/or approved.

         Shortly after the Executive Order was issued, a group of state legislators requested that the Attorney General for the State of Louisiana, Jeff Landry, issue a formal opinion addressing the validity and enforceability of the Executive Order. The legislators were concerned because proposed anti-discrimination legislation that had been intended to expand the protected groups of individuals to include "gender identity" had repeatedly failed to pass during legislative sessions for several years prior to the issuance of the Executive Order. The Attorney General issued an opinion on May 24, 2016, concluding that the Executive Order had no binding or legal effect since there was no constitutional or statutory provision in Louisiana that banned discrimination on the basis of "gender identity." The Attorney General stated that the Executive Order exceeded the Governor's authority to see that state laws are faithfully executed and enforced by attempting to create new legislation in violation of the separation of powers. Consequently, the Attorney General refused to approve various state agency requests for the appointment of private legal counsel if the proposed state contracts included the term "gender identity" in the anti-discrimination provision.

         The Governor filed a separate mandamus action seeking an order for the Attorney General to approve a number of pending state contracts, but that action was denied on the grounds that the Attorney General had discretion in the state contract approval process. No appeal was taken in that action; therefore, the issues in the mandamus action are not currently before us. However, because the conflict remained concerning the impasse over approval of private legal counsel contracts, the Attorney General instituted the current litigation pertinent to this appeal.

         In a petition for injunctive relief and for a declaratory judgment filed against the Governor on October 20, 2016, the Attorney General, as the executive head and chief administrative officer of the Louisiana Department of Justice, requested the district court to declare that the Executive Order was invalid and to enjoin any implementation or enforcement of the Executive Order. A group of state legislators filed a petition for intervention, joining and asserting the same claims as the Attorney General regarding the question of which branch of state government has the constitutional authority to add "gender identity" as a protected class under Louisiana's anti-discrimination laws.[2] In response, the Governor filed a reconventional demand for injunctive relief and declaratory judgment, seeking to have the Executive Order declared valid and insisting that the Executive Order does not create new law, does not conflict with current law, and was a lawfully issued policy directive relating to the issuance of state contracts and state employment in the executive branch of government. The Governor also requested that the district court define the role and authority of the Attorney General with regard to legal proceedings and the approval of private legal counsel for the state and its agencies, departments, boards, and commissions. The Attorney General filed several exceptions to the Governor's reconventional demand, asserting objections on the grounds of res judicata, no cause of action, and prematurity.

         The parties agreed to proceed to an expedited trial on the exceptions and the merits on November 29, 2016. The district court considered the law, evidence, and arguments of all counsel before denying all of the Attorney General's exceptions and granting the Attorney General's request for permanent injunctive and declaratory relief, enjoining the mandatory adoption and implementation of the Executive Order. The district court declared that the Executive Order constituted an unlawful ultra-vires act because it created new and/or expanded upon existing Louisiana law as opposed to directing a faithful execution of the existing laws of Louisiana, which was the sole purpose for the issuance of the Executive Order. The district court further declared that the Executive Order was a violation of the Louisiana Constitution's separation of powers doctrine and an unlawful usurp of the constitutional authority vested only in the legislative branch of government.

         As for the Governor's reconventional demand, the district court declared that the law permits the Attorney General's involvement in the appointment of private legal counsel to state agencies, boards, and commissions, but the Attorney General's authority does not extend to the review of the retention of private legal counsel to assert claims on behalf of the state, and the Attorney General's actions may not supersede the actions of private legal counsel once appointed, except for cause. The district court also found that the drafters of the Louisiana Constitution intended for the office of the Governor to be superior to the office of the Attorney General within the executive branch of state government, but the district court declined to issue an advisory opinion as to which of the state officers would prevail in any given dispute that could possibly ...


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