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Tuesday, June 27, 2006

Law - Louisiana Governor Blanco could not suspend suit deadline, court rules

The Baton Rouge Advocate reports:

A Baton Rouge judge has ruled Gov. Kathleen Blanco “exceeded her authority” when she gave Louisianians extra time to file lawsuits after the hurricanes.

In a case involving Fritz, a missing miniature Dachshund from Central, state District Judge Tim Kelley decided the Legislature also acted “improperly” when it retroactively ratified her order suspending the statute of limitations, known in Louisiana as prescription.

“I do not believe the governor had the authority to suspend the laws of the state,” Kelley said, according to a recording of last week’s hearing. “She does have the authority under the terms of the act to suspend the rules and regulations of various agencies of the state. But the courts are not agencies of the state.”

Just how the ruling ultimately might affect hundreds or thousands of otherwise late cases filed during the grace period isn’t clear. Until a higher court weighs in, it applies only to the case in which the decision was made.

But Jeff Nicholson, a lawyer for the plaintiff, said an appeal of the ruling is in the works; a 1st Circuit Court of Appeal decision would apply to all courts in the region. Kelley — predicting a full-blown fight — said the case “is going to be a fun one to go to the Supreme Court.”

At issue is an executive order Blanco signed suspending prescription, which sets a one-year deadline for filing certain civil lawsuits. Her order ran from Aug. 29 through Nov. 25.

The Legislature then retroactively ratified the governor’s orders during the 2005 Extraordinary Session, extending the suspension until Jan. 3.

Blanco based her order on the Louisiana Homeland Security and Emergency Assistance Act. It gives the governor authority to “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules or regulations of any state agency if strict compliance … would in any way prevent, hinder or delay necessary action in coping with the emergency.”

The decision was aimed at giving Louisianians a legal grace period in a time when courts, law firms and other aspects of the legal system were in chaos after hurricanes Katrina and Rita struck last fall.

But in his ruling, Kelley said the Homeland Security Act gives the governor authority to affect state agency rules and regulations “but does not extend to the laws of the state passed by the Legislature.”

“Because the Louisiana Homeland Security Act does not give her the authority to do what she did, she exceeded her authority in suspending the prescriptive laws of the state that previously have been passed by the Legislature,” the judge said. “Had the Legislature intended for the governor to have the authority to suspend the laws of the state, they would have expressly said so. Those executive orders were unconstitutional.”

Kelley’s decision — if upheld — means the grace period wasn’t legal. Any late lawsuits filed during that time could be thrown out for missing the one-year deadline.

The ruling comes in an unlikely case involving the Carmena family, the East Baton Rouge Parish Sheriff’s Office and a missing red and chocolate hound named Fritz.

There is much more to the story. The ILB asks, what about Indiana?

For starters, the Indiana Constitution, Article 1, Section 26: "The operation of the laws shall never be suspended, except by the authority of the General Assembly." So the next step would be look for statutory authorization.

Posted by Marcia Oddi on June 27, 2006 11:08 AM
Posted to General Law Related