This just in: applying the employment-at-will doctrine, the Louisiana Supreme Court has upheld a private employer’s right to require all of its employees to be vaccinated against COVID. Hayes v. University Health Shreveport, LLC, 2021-CC-1601 (La. 1/7/21).
When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.
If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:
This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.
In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977). Mashburn contains the following quotable quotes:
In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]
. . .
Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]
Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.
* Disclosure: Roppolo was one of my early successes.
On June 9, 2020, Act No. 162 of the Louisiana Legislature’s 2020 Regular Session became effective with the governor’s signature. This legislation enacts La. R.S. 9:5858 through 5830. To download a copy of Act No. 162, follow this link.
Section 9:5828 ratifies Governor Edwards’s various executive orders extending prescription, peremption, and other legal deadlines in Louisiana. Section 9:5829 continues the suspension of prescription, peremption, and abandonment through July 5, 2020, with expiration on July 6. But the suspension applies only to deadlines that otherwise would have expired between March 17 through July 5, 2020.
Section 9:5830 continues the suspension of all “deadlines in legal proceedings that were suspended” by the governor’s executive orders until July 6. But like § 9:5829, § 9:5830 applies only to deadlines that otherwise would have expired between March 17 and July 5, 2020.
Within the last few days, at least four of the five Louisiana courts of appeal have issued orders conforming their deadlines to Act No. 162. Under these orders, any filings that otherwise would have been due from the beginning of the COVID-19 emergency through July 5, 2020 will be timely if filed by July 6, 2020. Here are links to those orders:
- La. First Circuit (19 June 2020) (deadlines suspended from March 12 through July 5)
- La. Second Circuit (23 June 2020) (deadlines suspended from March 17 through July 5)
- La. Third Circuit (22 June 2020) (deadlines suspended from March 12 through July 5)
- La. Fourth Circuit (23 June 2020) (deadlines suspended from March 12 through July 5)
As I was writing this post, the Louisiana Supreme Court and Louisiana Fifth Circuit had not yet posted orders responding to Act No. 162. If and when they do, I’ll write a follow-up post on this blog. Stay tuned.
Passing by the U.S. Fifth Circuit’s web site, I spotted this announcement:
The Court will not conduct in person arguments for the week of June 29 – July 2, 2020, and the Clerk’s Office will advise counsel how panels will handle their cases. Updated calendars will be posted at http://www.ca5.uscourts.gov/clerk/calendar/int-cal.htm. If panels use video and/or audio conferences as permitted by General Order 3 COVID-19, a News Item will be posted before argument with links to the audio feed.
Like the Louisiana Supreme Court and other Louisiana courts of appeal, the Louisiana Fourth Circuit just issued an order extending its deadlines to June 16. Filings in that court that otherwise would have been due between March 12 and June 15, 2020 will be timely if filed by June 16. To download a copy of today’s Fourth Circuit order, follow this link.
It looks like June 16 is going to be a busy day in the Louisiana appellate world. Barring yet another extension of legal deadlines, that’s when a lot of stuff held up by the COVID-19 emergency is going to be due in the Louisiana Supreme Court and the First, Second, Third, and Fourth Circuits. In the Fifth Circuit, litigants will have until June 19.
Like the Louisiana First and Second Circuits, the Louisiana Third Circuit issued an order today extending deadlines to June 16. Any filings that otherwise would have been due in that court between March 12 and June 15, 2020 will be timely if filed by June 16. To download a copy of today’s order by the Third Circuit, follow this link.
Today the Louisiana Second Circuit issued an order following yesterday’s executive order by Governor Edwards. Like the Louisiana Supreme Court’s order earlier today, the Second Circuit order extends deadlines in that court to June 16. Filings that otherwise would have been due from the start of the COVID-19 emergency through June 15 will be deemed timely if filed by June 16. The order further says that the Second Circuit intends to hold oral arguments scheduled for June 22 and 23 and July 20 and 21, either in person or by video conference. To download a copy of the Second Circuit’s order, follow this link.
Today the Louisiana First Circuit issued an order following Governor Edwards’s latest executive order extending legal deadlines. Under today’s order by the First Circuit, filings that otherwise would have been due between March 12 and June 15, 2020 will be timely if filed by June 16. To download a copy of the First Circuit’s order, follow this link. There’s also an announcement about the order on the First Circuit’s web site, which you can read by following this link.
The First Circuit Courthouse is open, but with restricted access. Electronic filings and mail-in filings are encouraged. In-person filings are limited to drop off only. The First Circuit continues to process all filings and all cases with filed briefs will proceed to docketing and disposition.
The Louisiana Supreme Court just issued a pair of orders in response to yesterday’s executive orders by the governor.
In one order, the Court extended its own deadlines: any filings that otherwise would have been due between March 12 and June 15, 2020 will be timely if filed by June 16. To download a copy of this order, follow this link.
In the other order, the Court continued its prior orders for other Louisiana courts. This order continues to allow Louisiana courts to conduct in-person proceedings if they comply with social-distancing guidelines; it also encourages courts to hold proceedings by video or telephone conference when possible. To download a copy of this order, follow this link.
In response to the governor’s order 75 JBE 2020, The Louisiana Fifth Circuit issued an order today extending its deadlines. Under today’s order, filings that otherwise would have been due between March 12 and June 15, 2020 are now due on June 19. To download a copy of today’s order by the Louisiana Fifth Circuit, follow this link.
Be wary, though, about what law establishes your deadline. In a prior letter, Chief Judge Chehardy cautioned that her court can only extend deadlines set by court rules, and that the court does not have power to extend statutory deadlines. My take is that the governor’s order applies to deadlines set by statutes, and the court’s order applies to deadlines set by court rules.
Where does that leave deadlines to file applications for supervisory writs? I’m not sure. My suggestion would be to play it safe and either file by whatever valid return date you have or file a timely motion to extend the return date.