Judge rules petition statute House Republicans used unconstitutional, marking win for governor

A 19th Judicial District Court today ruled unconstitutional part of a statute used by Louisiana House Republicans to try to end, via petition, the governor’s order imposing COVID-19 restrictions.

Judge William Morvant determined that the part of the Health Emergencies Act cited in the petition is unconstitutional because it allows a governor’s executive order to be overturned with only a majority of one chamber of the state legislature — in this case, the House of Representatives — rather than both the House and Senate.

Morvant issued his ruling after a morning of debate between Louisiana Attorney General Jeff Landry, his assistants, and attorneys for Gov. John Bel Edwards. The ruling is a critical blow to the attorney general and House GOP members who have tried multiple times to end or weaken COVID-19 restrictions in Louisiana. 

The case stems from a petition signed by a majority of House members, all Republicans, in October and presented to the governor in an attempt to overrule and suspend the statewide public health emergency and all its coronavirus restrictions for seven days. Days later, Edwards, a Democrat, filed a lawsuit that claimed it was unconstitutional, particularly in regards to an obscure statute the Republicans were relying on as the basis for their petition. 

That statute, Title 29, Section 768(B), contains a provision that states, “The Legislature, by petition signed by a majority of the surviving members of either house, may terminate a state of disaster or emergency at any time…Thereupon, the governor shall issue an executive order or proclamation ending the state of disaster or emergency.”

The petition is a last-ditch effort led by House Speaker Clay Schexnayder to check the Democratic governor’s use of his emergency powers. Schexnayder was one of 65 of the 68 Republicans in the House who signed the petition. The House presented it to Gov. Edwards on the last day of the legislature’s second special session — a session that was called primarily to check the governor’s authority but ultimately failed to deliver any such legislation except for a narrowly-passed bill that Edwards vetoed. That bill would have allowed legislators to pick and toss out individual health restrictions or entire emergency orders. 

Held via Zoom video conference, Tuesday’s court hearing was interrupted several times by a citizen spectator who shouted his disappointment with Judge Morvant’s reasoning, saying the state “needs to be open.” Morvant told the man to be quiet, telling him he would be held in contempt if the hearing were in an actual courtroom. Instead, the judge’s only recourse was to have the man muted. Additionally, the Zoom conference’s chat thread was turned off during the hearing after it filled up with derogatory comments about the judge and words of support for Attorney General Jeff Landry. 

Landry, also a Republican, and his assistant attorneys general argued that a ruling in favor of the governor would allow no legislative oversight of Edwards’ emergency powers.

“Our government is built on a system of checks and balances,” Landry wrote in a press release after the hearing. The Legislature makes laws; the Governor enforces them. Today, the Court effectively ruled the Governor may make law without any legislative oversight — this turns Louisiana into a dictatorship under King Edwards.”

Judge Morvant, however, said there are indeed checks and balances via the bicameral method of passing bills and overriding vetoes. He pointed out that the Senate did not sign a petition and said it would be unconstitutional to allow the majority of only one chamber to override an executive order.

“Look, if you had brought me a petition signed by both chambers, I would have granted the mandamus so fast it would have made the governor’s head spin,” Morvant said, using a legal term that refers to a document ordering a government official to do or stop doing something.

Gov. Edwards released a statement after the hearing, praising Judge Morvant’s ruling. 

“Today is a victory for public health in the state of Louisiana and for all of those people, from our health care heroes, including our doctors, nurses and other medical professionals to our scientists and researchers, who are fighting every day to slow the spread of COVID and save lives here,” Edwards said. “The petition signed by some members of one chamber of Louisiana’s Legislature could not terminate the emergency order because the petition was based on a law that violated the Louisiana Constitution.”

For much of the year, Gov. Edwards has fended off a flurry of litigation endorsed by the attorney general. Earlier this year when the governor closed bars amid the state lockdown, Landry issued a formal opinion claiming Edwards’ COVID-19 restrictions were illegal. Several bar owners then sued the governor, using Landry’s opinion to prop up their cases, but both a state judge and federal judges ruled against them and found the restrictions were indeed legal.

Also, in a lawsuit over Louisiana’s emergency election plan, Landry intervened as a co-defendant and lost alongside Republican Secretary of State Kyle Ardoin.

This petition case will probably be appealed. Several times during Thursday’s hearing, Judge Morvant said the case is likely headed to the Louisiana Supreme Court.

Prior to the recent third wave of COVID-19 cases across the United States, Louisiana for several months led the country with most confirmed infections per capita. The Louisiana Department of Health reported 2,173 new cases and 34 new deaths for the two-day period Wednesday and Thursday (data was not reported on Veterans Day). Louisiana’s total infections are 191,889, and total confirmed deaths are 5,863, according to the health department.