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.


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Do you think a request for declaratory relief would constitute a 'motion' for the purposes of challenging the constitutionality of a criminal statute?


I have no idea; I don't practice criminal law.

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