Louisiana Voice

Oral arguments are scheduled to be heard on Nov. 7 in the First Circuit Court of Appeal in Baton Rouge on a three-year-old matter that a layman unfamiliar with the way in which judges can manipulate and interpret laws to keep the meter running would think should have been settled two years ago.

But settling cases quickly and decisively is not the way the courts work and because of that, the case involving the unconstitutional closure of Huey P. Long Medical Center (HPLMC) in Pineville in 2014 rocks on, continuing to rack up fees for contract attorneys for the state—all paid for thanks to the generosity of Louisiana taxpayers.

Meanwhile, the fate of some 570 employees has been held in abeyance since the hospital’s closure on June 30, 2014.

And the manner in which its closure was approved prompted the lawsuit by plaintiffs Edwin Ray Parker, Kenneth Brad Ott and the American Federation of State, County, and Municipal Employees (AFSCME).

Here’s the way it all went down:

At 4:07 p.m. on April 1, 2014, a notice of the April 2 meeting at 9 a.m. of the Senate Health and Welfare Committee to consider Senate Concurrent Resolution (SCR) 48 which “Provides for legislative approval of and support to the Board of Supervisors of Louisiana State University for the strategic collaboration with the state in creating a new model of health care delivery in the Alexandria and Pineville areas.”

A “new model of health care delivery” was a clever way of wording the SCR so as not to tip the hand of the Jindal administration’s intent to shutter the doors of HPLMC. Who could possibly be expected to discern from that goony-babble that in less than 24 hours, the decision would become final to close the facility?

There were only two key things wrong, either of which should have been sufficient grounds to stop closure of HPLMC.

First, the Senate’s own rules promulgated in accordance with the Louisiana Open Meetings Law LA 42:19(B), which says that notice of all such meetings must be posted no later than 1:00 p.m. the day prior to the meeting and if notice is posted after 1:00 p.m., the agenda item may not be heard the next day. (emphasis added)

Second, in a 1986 case, the U.S. Supreme Court held that:

A concurrent resolution…makes no binding policy; it is ‘a means of expressing fact, principles, opinions, and purposes of the two House (House of Representatives and Senate).” (emphasis added)

Attorney J. Arthur Smith, III of Baton Rouge argues that Article III, Paragraph 14 of the Louisiana Constitution provides that the style of a law “shall be ‘…enacted by the Legislature of Louisiana’” and Paragraph 15(A) which says rather bluntly, “The legislature shall enact no law except by a bill introduced during that session…” (emphasis added)

Smith said, “The Legislature cannot amend Louisiana statutes by resolution” because an enacting clause “distinguishes legislative action as law rather than a mere resolution” as held in First National Bank of Commerce, New Orleans v. J.R. Eaves in that “failure to include a significant portion of the enacting clause renders the law unconstitutional.”

To put all that in plain English, Smith is simply pointing out case precedents which hold that a concurrent resolution is not the same as a legislative bill and therefore, is not binding.

That’s pretty straightforward and something that a first-year law student should be able to comprehend.

Yet, when the state appealed the ruling of State Judge Pro-Tem Robert Downing of June 23, 2014, which granted plaintiff’s request for a preliminary injunction because the Senate committee violated the Open Meetings Law and provisions of Article III of the Louisiana Constitution, the First Circuit managed somehow to overlook the violations.

Instead, it ruled the state’s appeal as moot since HPLMC closed on June 30, 2014, seven days after Downing’s ruling and the First Circuit did so without even bothering to address the issues on which Downing’s ruling was based.

Moreover, the state appealed directly to the Louisiana Supreme Court on the basis of the declaration of the unconstitutionality of SCR 48. On Jan. 13, 2017, the Supreme Court denied the state’s appeal as moot but on Feb. 24 of this year, granted a rehearing to the First Circuit.

So now, a three-judge panel comprised of Judge John Michael Guidry, Judge John T. Pettigrew and Judge William J. Crain will hear arguments on the constitutionality of SCR 48 and of violations of the Open Meetings Law.

Interestingly, the state argues that notices to the public “need not contain anything other than a bill number” and that the Senate “has no obligation to inform the public of the nature or substance of the legislative proposals it will be considering.”

Now that’s a damned interesting concept. Who knew we, the public, had no right to be informed of what our elected representatives are up to? Who knew the people we elect and send to Baton Rouge have “no obligation” to let us know what they’re cooking up in the House that Huey built? Who knew the Bobby Jindal administration could push a concurrent resolution through the Senate and call it a law? Who knew such upright public servants as Jindal and members of the Senate committee would flim-flam us?

Louisiana R.S. 42:24 authorizes the courts to void “any action taken in violation” provided a lawsuit to void any action “must be commenced within 60 days of the action.”

The Baton Rouge firm of Taylor, Porter, Brooks & Phillips is representing the State in the HPLMC litigation.