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When a court of appeal declares a law unconstitutional

Most of the civil cases decided by the Louisiana Supreme Court are heard under the court’s supervisory jurisdiction. This means that review by the LASC is discretionary. You invoke the court’s jurisdiction by filing a writ application, and you pray that your application is among the roughly 5% of applications that are granted. But when a Louisiana court declares a law unconstitutional, the LASC has appellate jurisdiction. This means that the aggrieved party has the right to have at least the constitutional issue heard and decided by the LASC.

If a district court declares a law unconstitutional, you appeal it the same way you would appeal any adverse decision: you file a motion or petition for an appeal. The only difference is that, instead of going to a court of appeal, the appeal goes directly to the LASC. But what do you do if it’s the court of appeal, not the district court, that declares a law unconstitutional? Procedurally, how to you exercise your right to have the constitutional question heard and decided by the LASC? As it turns out, there are two right answers to this question.

The most common approach seems to be the normal route to the LASC: an application for a writ of certiorari. In a 1970 decision, the LASC held that it "will grant certiorari as a matter of right to the applicant in a case where the appellate court has declared a law unconstitutional.” Bradford v. Dept. of Hosps., 255 La. 888, 894, 233 So. 2d 553, 555 (1970). Since the adoption of the 1974 Constitution, the LASC has repeatedly granted writs in such cases and docketed the case as an appeal. These cases include the following:

More recently, the LASC has accepted appeals taken from a court of appeal when the court of appeal declared a law unconstitutional. See Crooks v. Metropolitan Life Ins. Co., 2001-0466 (La. 5/25/01), 785 So. 2d 810Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La. 1/19/05), 903 So. 2d 392.

So it seems that, if a court of appeal declares a law unconstitutional, there are two paths you can go by to get to the LASC (apologies to Plant and Page).


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courtney humphrey

What does one do when a court of appeal finds that the decretal language declares a law unconstitutional and orders the parties to show cause why the appeal should or should not be dismissed or transferred to the LASC?


I don't know. I guess it depends on whether you think the court of appeal is right and whether you want a ticket to the LASC. There may be other considerations too, such as whether there’s another issue in the appeal that may moot the constitutional question. Just too many possibilities for a one-size-fits-all answer.

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