The Louisiana First Circuit Court of Appeal was less interested Tuesday in the constitutionality of protections for transgender employees and more focused on whether the governor or the attorney general had the power to include that caveat in state contracts with private companies.
The three-judge appellate panel, led by Judge Toni M. Higginbotham, of Baton Rouge, heard arguments in Attorney General Jeff Landry's lawsuit challenging an April 13, 2016 order by Gov. John Bel Edwards that precludes companies contracting with the state from discriminating against LGBT employees. Landry had blocked dozens of legal services contracts that contained the anti-discrimination language for lesbian, gay, bisexual, and transgender people.
After a private conference between the lawyers for both side and the judges, Matthew Block, Edwards’ general counsel, contended that the state constitution gives a governor the right to determine employment policies within his administration. While the powers a governor has to enforce his policies on officials elected statewide is vague, the law is clear a governor has authority to impose his will on employees of state agencies and on contracts for work let through the Office of State Procurement.
One state law gives the governor and attorney general say so over contracts involving boards and commissions, Block argued. The other statute giving the governor authority over agreements between various state agencies and private contractors, doesn’t mention the attorney general.
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Edwards and Landry have clashed repeatedly since taking office in 2016. Landry is considered a possible challenger to Edwards in the 2019 governor's race.
They traded insults. They fought over turf. They sued each other.
Judge Guy Holdridge, of Gonzalez, and Judge Allison H. Penzato, of Mandeville, asked if the Attorney General would be satisfied with the executive order if the four words protecting transgender employees were removed from contracts.
Murrill argued that the law gives Landry discretion to approve or reject proposed contracts and that some of the agreements for legal work went beyond just a problem with that language.
Holdridge said the two statutes are vague and asked if in deciding the case, the judges are going to decide which state agencies to apply the executive order.
It’s a decision the panel could render at any time, but is not expected to until September. Based on what the panel says, the case could be reheard before all 13 members of the Baton Rouge-based appellate court or could be directly appealed to the Louisiana Supreme Court.
The case, Jeff Landry, et al., vs. John Bel Edwards, Docket No. 2017-CA-0173, is the governor's appeal of a December trial court decision by 19th Judicial District Court Judge Todd Hernandez, of Baton Rouge, who ruled Edwards’ order had violated Louisiana's constitutional separation of powers because it circumvented Louisiana legislators.
In declaring the order invalid, Hernandez basically allowed the employment protections to be stripped from the language of existing contracts that Landry had held up. But his order didn’t directly address whether governor has the power to issue employment policy orders that the other six agency heads elected statewide have to follow.
For Gov. John Bel Edwards, he must be wishing that all months could be like this one.