Preserving affirmative defenses
Preserving objections to summary-judgment evidence

Preserving constitutional challenges

Before leaving the topic of preserving claims and defenses, let’s look at something that can be part of a claim or a defense: an argument that a law is unconstitutional.

The general rule in Louisiana is that litigants must first raise constitutional attacks in the trial court, not the appellate court. The constitutional challenge must be specially pleaded, and the grounds for the claim must be particularized. Mosing v. Domas, 830 So. 2d 967, 975 (La. 2002). “Specially pleaded” means that the challenge must be stated in a pleading, that is, in a petition, an answer, an exception, or a motion. Merely raising the argument in a brief or memorandum is insufficient. Becnel v. Lafayette Ins. Co., 773 So. 2d 247, 255 (La. App. 4 Cir. 2000)Allen v. Carollo, 674 So. 2d 283, 290 (La. App. 1 Cir. 1996).

The Louisiana Supreme Court has recognized four exceptions to this general rule, three of which can apply in a civil case: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; and (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court. Unwired Telecom v. Parish of Calcasieu, 903 So. 2d 392, 399 n. 5 (La. 2005)Mosing v. Domas, 830 So. 2d at 975 n. 2.

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)