New York Law School

Art Leonard Observations

Louisiana Court Finds Governor Edwards’ Civil Rights Executive Order Unconstitutional

Posted on: December 19th, 2016 by Art Leonard No Comments

A trial judge in Louisiana ruled on December 14 that an Executive Order by Governor John Bel Edwards, forbidding anti-LGBT discrimination in the executive branch of the state government and by state contractors, violates the Louisiana constitution and laws. 19th Judicial District Judge Todd W. Hernandez, in the Parish of East Baton Rouge, said that this Order violates the separation of powers established by the Louisiana Constitution, is outside the governor’s authority to “faithfully execute the laws,” and should be enjoined.  Governor Edwards promptly announced that he would appeal this ruling.  Louisiana Department of Justice v. Edwards, No. 652,283 (19th Judicial District).

Hernandez’s decision came in a lawsuit filed by the Louisiana Department of Justice and Attorney General Jeff Landry, who challenged the authority of the governor to extend anti-discrimination rules to categories not already covered by state statutes. At the same-time, Hernandez ruled on a countersuit filed by the governor as part of his response to Landry’s lawsuit, in which Gov. Edwards challenged Landry’s refusal to approve attorneys who were being retained by executive branch agencies to represent them in litigation.

Landry argued that JBE 16-11, the order signed by Edwards shortly after he took office early in 2016, inappropriately creates “a newly created protected class of persons not recognized by current law.” He also contended that the restrictions placed on state contractors violated the Commerce Clause of the U.S. Constitution and “certain First Amendment rights and privacy interest rights established by the Louisiana and United States Constitutions,” according to Judge Hernandez.  Landry’s reference to “class of persons” mischaracterizes the Executive Order, which does not create protected classes, but rather, in the general approach of civil rights laws, forbids discrimination because of particular characteristics, in this case sexual orientation and gender identity.  Thus, everybody is protected from discrimination because of those characteristics, including non-gay people and cisgender people.

Hernandez declared that the Executive Order “constitutes an unlawful ultra-vires act because, regardless of the defendant’s intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of the existing laws of this state pursuant to the authority granted unto [sic] the office of the Governor to issue executive orders.” Hernandez proclaimed that the governor was improperly exercising legislative authority, which is “an unlawful usurp [sic] of the constitutional authority vested only in the legislative branch of the government.”

Judge Hernandez did not cite any prior Louisiana court decisions to support his ruling. One suspects the state courts have never before addressed this question, or at least not in a way that would support the court’s ruling.  Instead, the judge embraced his literalistic reading of the state constitution, which “declares the office of the Governor as the ‘Chief Executive Officer’ of the State of Louisiana and he/she shall see that the laws of this state are faithfully executed,” and goes on to cite a statute that says, according to the judge, that “the sole purpose for the issuance of an executive order is to provide the office of the Governor with a mechanism to ‘faithfully execute the laws of the State of Louisiana.’”

Hernandez was not accurately quoting the statute, LRS 49:215, which says: “The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.” This is not, on its face, restricted to the laws of Louisiana, and the oath of office of the governor, together with all other state elected officials, requires them to support both federal and state laws, including the federal and state constitutions, both of which provide “equal protection of the laws” to all people in the state.

The U.S. Supreme Court established in 1996 in Romer v. Evans that anti-gay discrimination violates “equal protection of the laws” under the 14th Amendment to the U.S. Constitution, unless the state has a rational basis to treat people differently because of their sexual orientation. Thus, an Executive Order banning anti-gay discrimination in the executive branch of the state government is consistent with the governor’s obligation to see that the laws are faithfully executed, although there might be some controversy about extending this to “gender identity” in the absence of U.S. Supreme Court authority. The 11th Circuit U.S. Court of Appeals, whose jurisdiction covers Alabama, Florida and Georgia, is so far the only federal appeals court that has recognized a constitutional equal protection claim by a transgender public employee, but the logic of Romer v. Evans would surely cover such a claim as well.

Hernandez found that the Executive Order “extends beyond the lawful parameters of executive order authority and its adoption and implementation is found to be either a creation of new law and/or an expansion of existing law. In either case,” he continued, “this is a violation of the separation of powers doctrine of the Louisiana Constitution and is an infringement upon the constitutional authority vested solely upon the Legislature of the State of Louisiana.”

However, Hernandez rejected without explanation Landry’s claim that other federal or state constitutional provisions were violated by the executive order.

Turning to the governor’s counterclaim, Hernandez found that Louisiana statutes specifically authorize the attorney general to approve or disapprove lawyers whose engagement is sought by executive branch agencies, but that once those lawyers have been engaged, the attorney general has no supervisory authority over them and cannot dictate what positions they take in their representation.

As to the governor’s request for a ruling that the office of the governor is superior to the office of the attorney general when a dispute about legal policy arises, Hernandez declined to rule, finding that without the presentation of an actual dispute between the two officers, the question was not “ripe” for judicial consideration. “There is no evidence of a justiciable controversy concerning which constitutionally created officer of this state should prevail if a dispute were to arise between them relating to a legal matter concerning the legal interest of the State of Louisiana,” he wrote.  To express a view in the abstract would be akin to rendering an “advisory opinion” beyond the authority of the court.

Tags: , , , , , , , , , , ,

Leave a Reply