Attorney General Buddy Caldwell’s office raised questions in a court filing this week about the constitutionality of a 2014 state law aimed at killing a massive coastal erosion lawsuit filed by a New Orleans-area levee authority, but it stopped short of taking an official position on the matter.
The brief was filed in the wake of 19th Judicial District Court Judge Janice Clark’s ruling on Monday that the law, known as Act 544, does not apply to the Southeast Louisiana Flood Protection Authority-East’s suit.
Clark is presiding over a case related to the hiring of lawyers in the suit, but the lawsuit itself is being heard in federal court, where District Judge Nannette Jolivette Brown likely will make her own determination on whether the 2014 law applies to the case or is constitutional.
Clark said Monday she planned to rule on the constitutionality of the law. The parties in that case — Caldwell, the levee authority and the Louisiana Oil and Gas Association — all have filed documents with her since then stating their positions on the issue.
In its brief, the Attorney General’s Office said it is not taking a stance on the constitutionality of the law because Clark already has decided it does not apply to the levee authority. But Wade Shows, an attorney for the office, wrote that there are constitutional issues with the measure.
“Although the retroactive application of Act 544, at a minimum, raises problematic constitutional separation-of-powers issues and even clearer constitutional issues (related to requirements for passing bills), it is not necessary to reach these issues given the non-constitutional grounds on which this matter can be decided,” said Shows, who is representing Caldwell’s office in the case.
The case in front of Clark began last year when LOGA sued Caldwell, alleging that his office should not have signed off on a resolution passed by the Flood Protection Authority that allowed it to hire the outside lawyers who are pursuing the coastal erosion case. Clark dismissed that suit earlier this year, calling it frivolous.
The authority later asked her to rule on whether Act 544 could apply to an appeal in the case and urged her to declare the measure unconstitutional. On Monday, she ruled the law did not apply, but she said she also planned to rule on its constitutionality at a later date, saying she found some of the authority’s arguments against it convincing.
The levee authority had argued that Act 544 violated the separation of powers because it instructed the judicial branch on how to handle an ongoing case. The authority also said the law was passed without meeting public-notice and other procedural requirements and violated a constitutional provision that it said prevents the state from eliminating legal claims related to coastal restoration filed by other governmental entities.
Caldwell has been on the periphery of the issues surrounding Act 544.
He urged Gov. Bobby Jindal, who has opposed the levee authority’s lawsuit since it was filed, to veto Act 544 after dozens of legal experts warned that the law was so broad that it could endanger claims related to the 2010 Deepwater Horizon oil spill. BP has not yet brought up the law in the cases related to the spill; if the law is struck down entirely, it would keep the issue from being invoked in that case.
In its own brief, LOGA also argues that Clark should not take up the constitutionality of Act 544 because she has already ruled the law does not apply to the Flood Protection Authority, an argument similar to that made by the Attorney General’s Office.
LOGA, however, defends the constitutionality of the law, arguing that it falls within the scope of other cases in which new laws “terminating a pre-existing lawsuit” were upheld by the state Supreme Court. One such case was a lawsuit in which former New Orleans Mayor Marc Morial sued several gun manufacturers, arguing the city had suffered because of their products. The Legislature passed a law banning that suit after it was filed, and the Supreme Court ruled it was constitutional.
The LOGA brief, by attorney Robert Mahtook, also argues that the law was passed according to the requirements in the state constitution. Though the bill that led to the new law was entirely rewritten in the middle of the legislative process, Mahtook argues that the intent of the law remained the same and therefore the measure was properly adopted.
It is unclear when Clark will rule on the constitutionality of the law. In any event, her decision will not be the final word on the matter. Brown will take up the issues surrounding Act 544 in November. Both cases are expected to be appealed regardless of their outcome.
Follow Jeff Adelson on Twitter, @jadelson.