The gist: In a whiplash decision, the Third Circuit Court of Appeal affirmed on Friday a district court ruling that upheld a fix to errors in the charter amendments passed to create separate city and parish councils. The three-judge panel, which heard oral arguments Wednesday, ruled against a legal challenge brought by a council candidate and the secretary of state.
Appeals court OKs ordinance to fix charter amendment errors
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The case is likely headed to the Louisiana Supreme Court. The supreme court can choose not to hear the case, which would bring the legal challenge to a halt. Given a dissenting opinion on the appeals court panel, the supreme court will probably take up the matter, says Gary McGoffin, an attorney representing private citizens who joined the case in support of challenged fix.
You can read the decision here.
Get caught up, quickly: Last year, voters said yes to creating separate city and parish councils. The proposition included some typos that, left in error, would leave some voters without representation. The City-Parish Council fixed those discrepancies by ordinance, drawing a legal challenge. Secretary of State Kyle Ardoin joined that suit, which was ultimately dismissed at district court. Friday’s decision moves the matter on to the supreme court.
Judge denies secretary of state’s request to suspend charter amendment ruling pending appeal
The gist: A district court judge denied the secretary of state’s request for a suspensive appeal, a procedure that would have paused the effect of his decision upholding City-Parish Council’s ordinance to fix errors in the amended charter.
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3 min read
Get caught up, quickly: Last year, voters said yes to creating separate city and parish councils. The proposition included some typos in the text describing the new city council districts that, left in error, would leave some voters without representation. The City-Parish Council fixed those discrepancies by ordinance, in March, a move that drew a legal challenge from a council candidate. Secretary of State Kyle Ardoin joined that suit, which was ultimately dismissed May 8 by Judge John Trahan.
Ardoin had filed a suspensive appeal. If granted, the district court’s ruling would have been shelved until appeals were exhausted. Lawyers with the attorney general’s office, representing the secretary of state, argued that allowing the ruling to take effect would have “disastrous consequences,” should the constitutionality of the corrective ordinance be overturned during or after the election.
Attorneys for some Lafayette residents argued suspending the ruling would have risked leaving 300 disenfranchised. Again, that’s if the appeal would linger into or beyond this fall’s elections. Legal descriptions defining voter precincts would remain broken if the ruling were paused, they argue, leaving them unable to vote.
An appeal will nevertheless work its way through the courts. Attorneys for Keith Kishbaugh, the candidate who filed the original legal challenge to stop the fix by ordinance, filed a separate appeal. Both parties were granted “devolutive” appeals, meaning the judgment remains in effect during the appeals process. You can see the notice of appeal here.
Ardoin appears bound to qualify the election, should the appeal drag on. In a separately filed motion to stay the judgment pending an appeal, Ardoin contended that allowing the judgment to stand with appeals in the air was, in effect, a legal order on the office to hold the election according to the amended charter. There are fewer than 70 days until qualifying.
Why this matters: Qualifying begins Aug. 6 for the Oct. 12 election.
Following an appeal all the way up to the Louisiana Supreme Court could take as much as 60 days from here, I’m told, although the appellate courts will likely work to move things along. Should the appeals linger into August, this effectively means candidates for separate city and parish councils will be qualified.
Shaq, U.S. Rep. Higgins no longer Lafayette reserve deputy marshals
The gist: Lafayette City Marshal Mike Hill has winnowed down the number of his office’s reserve deputies — which had swelled to about 60 under his predecessor — to but a handful. Hill has called in the commissions of nearly 50 reserves who appear to have been deputized for no other reason than political patronage.
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Court dismisses charter amendment suit. Appeals expected but not yet filed.
The gist: A district court judge dismissed a legal challenge that threw into question last year’s vote to create separate city and parish councils, characterizing discrepancies in the voting precincts for the new form of government as “clerical errors.” In his Wednesday ruling, Judge John Trahan held that the City-Parish Council acted within its authority when it passed an ordinance correcting those discrepancies. Plaintiff Keith Kishbaugh, joined by the secretary of state, argued the corrections could only be made by an amendment approved by popular vote.
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Candidates are launching campaigns, and it’s not clear there will be a city council to run for
The gist: Candidates are peppering inboxes with announcement releases for the new Lafayette City Council, but it remains unclear whether the elections will go on. Overtures from state officials leave open the possibility that Lafayette will not seat two new councils this fall.
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5 min read
Firing back at ‘misinformation,’ AG Landry attacks LCG attorneys on charter errors
The gist: Conflicting opinions between the attorney general and city-parish attorneys have come to verbal blows. In a press release issued Thursday, Landry doubles down on his office’s rapid-fire opinion and takes shots at the local legal team’s competence.
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Get caught up, quickly: Errors in the legal descriptions of the map for the new city council districts — literally, words describing a map — have thrown the transition to separate councils into turmoil. In a lengthy report, LCG attorneys confidently argued an ordinance can fix the errors. Landry disagrees, saying an election is the only way to make changes.
“It is important to always note that this problem arose after taking the City Attorney’s original advice.” That’s how Landry concludes the terse release, purported to “clarify” the AG’s opinion on the charter errors. He calls LCG attorneys’ 11-page memo, which determines an ordinance is the “only appropriate” fix for the charter discrepancies, an attempt by the “City Attorney” to “correct his own mistake.”
City-Parish Attorney Paul Escott raised questions about the turnaround speed of the AG opinion. He noted at a council meeting Tuesday night that the opinion’s language looks similar to a letter from a state senator requesting it. The AG opinion was delivered within 24 hours of the request’s receipt, a lightning fast turnaround according to some legal observers. Landry credited quick service to his staff’s preparedness on the issue.
Landry views the issue as “cut and dried.” It’s not clear that it is. Issued hours before the City-Parish Council passed an ordinance correcting the discrepancies, the AG’s opinion does not address glaring problems with resolving the errors by election, the remedy that office recommends. Some charter language prohibits reapportionment “by referendum,” and rules out voting on the same amendment twice in the same year. Then there’s the practical concern that voters may vote “no” on the corrected legal descriptions and leave the parish without legal districts to qualify for voting.
Curiously, the opinion suggests that reapportionment, the process by which districts and precincts are redrawn in response to population changes, can never be performed by ordinance because the districts are enshrined the Home Rule Charter. Since consolidation, the city-parish council has adjusted its boundaries by ordinance several times, a practice that’s common around the state.
In a radio interview recorded Wednesday, Landry wondered whether a vote would be necessary for reapportionment after the next census. Both the current and amended forms of the Home Rule Charter specifically provide that the council can move boundaries by ordinance. The AG’s rigid legal view holds that every such change is an amendment, and would thus require a public vote.
How does this play out from here? There’s a tangle of outcomes, and most of them end up in court. Someone could sue LCG and claim the ordinance violates the law, and it appears that such threats are legitimate. Secretary of State Kyle Ardoin could refuse to qualify candidates from the amended districts; a spokesman for his office said Wednesday Ardoin and his legal team are weighing their options.
Council bucks the AG, and now we’re all waiting for a lawsuit
The gist: Opinions issued by LCG’s legal team and the attorney general on how to fix the charter errors are irreconcilable. The council sided with city-parish attorneys, raising the specter of litigation, which seemed pre-ordained regardless.
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4 min read
Get caught up, quickly: Errors in the legal descriptions of the map for the new city council districts — literally, words describing a map — have thrown the transition to separate councils into turmoil. In a lengthy report, LCG attorneys confidently argued an ordinance can fix the errors. The attorney general’s office disagreed, saying an election is the only way to make changes. The council approved a reapportionment ordinance fixing the issues by a 6-3 vote Tuesday night, with councilmen Pat Lewis, Jared Bellard and William Theriot voting against it. Now we’re waiting for some mysterious litigant to appear.
Not to overburden the point but these two opinions can’t be more opposite. The AG’s office says an election is the way to go and an ordinance is illegal. City-parish attorneys say literally the opposite. To wit, from the local legal memo issued March 10: An election is neither required nor appropriate. And from the AG’s opinion issued March 25: Such changes cannot be made by ordinance of the governing body.
What’s odd is that such changes have been made by ordinance for decades. As noted in the LCG report, LCG has routinely reapportioned districts between censuses by ordinance. It’s unclear whether the AG opinion suggests that practice should be outlawed altogether. The local memo says reapportionment “may not be determined by referendum,” a direct contradiction of the AG’s interpretation of the charter and statute.
Let’s not argue till we’re blue in the face. I’m not a lawyer. You’re not a lawyer (if you are, sorry). A lawsuit seems inevitable, in which case a judge would settle the dispute once and for all. Rumors that a suit is in the offing seem legit. Late last week, on behalf of undisclosed clients, attorney Lane Roy filed an inquiry with LCG prodding whether the charter amendments illegally “disposed” of LUS Fiber. Roy could not be reached before press time.
LCG attorney Paul Escott showed steady confidence in the work of his legal team Tuesday night and appeared skeptical of the speed and substance with which the attorney general’s office responded to a Monday request sent by a state senator from Vermilion Parish.
“[The request letter] looked strikingly similar to the actual opinion of the attorney general’s letter,” Escott said. Escott contrasted the relatively scant review in the AG opinion with the three weeks of study his team of four attorneys took to produce an 11-page report that concluded an ordinance was the best option.
“It does not change my opinion at all,” Escott advised the council with respect to the AG’s conflicting opinion. “It does not affect my confidence level.”
AG Jeff Landry said the quick turnaround was the result of “being prepared” in a radio interview Wednesday afternoon. He defended his office’s work, chiding the council for ignoring his advice at “their own peril” and likened the council discourse on the issue to “high pressure sales tactics.” He also questioned whether the secretary of state would allow candidates to qualify under the maps fixed by ordinance. “I don’t know where it goes from here,” he said.
Secretary of State Kyle Ardoin has seen the AG opinion and is weighing his options. Ardoin left the issue up to the council to resolve after first declaring a vote was needed. Spokesman Tyler Brey tells me they’ve not determined what to do in light of the new AG opinion.
“We’re not going to wait until deadlines to make these decisions,” he says.
Geez, can I run for office yet or what? Lafayette Parish Clerk of Court Louis Perret says he expects to issue revised and final maps in the next few days. The registrar of voters is currently finalizing them after Tuesday’s vote to fix the discrepancies by ordinance.
Will the madness ever stop? Probably not. There’s a lot of bitterness clouding the issue. It’s hard to imagine that Tuesday’s vote will be the death of the controversy.
The ongoing battle for local autonomy
The timeless battle over autonomy is at the heart of several ongoing debates at the council level, heard earlier this month. The controversy is simple: Does Lafayette want the state involved in our local politics?
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5 min read
Eleventh-hour AG opinion says ordinance can’t fix charter amendment errors. Now what?
The gist: Hours before the council will vote on a pair of ordinances to fix the errors, Attorney General Jeff Landry issued an opinion saying only an election can re-amend the charter. The quickly issued opinion contradicts one authored by city-parish attorneys earlier this month.
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4 min read
Get caught up, quickly: Errors in the legal descriptions of the map for the new city council districts — literally, words describing a map — have thrown the transition to separate councils into turmoil. In a lengthy report, LCG attorneys confidently argued an ordinance can fix the errors. Landry disagrees, saying an election is the only way to make changes.
Everyone agrees an AG opinion is just an opinion. Across the board, there’s ready acknowledgement that Landry isn’t the law. Still, the contradiction creates a new crisis ahead of the vote given the legal controversy all but guarantees a lawsuit, one way or the other. You can read the opinion here.
“The facts are now that you have two different opinions,” Councilman Jared Bellard tells me. Bellard opposed the charter amendments and says he’ll vote against the ordinances Tuesday night. “I think if you go ahead and vote, you’re going to be encouraging a lawsuit. I wouldn’t want to encourage a lawsuit that’s going to cost us money.”
Suspicion abounds that the opinion is about politics, not voting rights. Landry’s links to the local GOP, which opposed the charter amendments, and his reputation for partisanship, raised questions about his objectivity. Charter amendment supporters, like Councilman Jay Castille, have called appeals for an AG opinion a “political ploy” designed to create chaos by factions that want to see the charter amendments overturned. That the opinion was issued within 24 hours of a request by a state senator from Vermilion Parish doesn’t help the perception that a fix is in.
Some say screw it, let them sue. LCG attorneys were pretty confident that their extensive legal review, based in part on previous AG opinions, was correct in saying a fix by ordinance is the “best and proper” path forward. And some council members are pretty confident in the local legal staff.
“I’m going to go with our legal counsel’s opinion,” Councilman Bruce Conque says. Conque was a charter amendment co-author. “If anyone wishes to challenge it [in court] then fine, which I’m sure they will.”
OK, so what now? Court, probably. Bellard and Conque both say a declaratory judgment could resolve the chaos once and for all. That was a solution proposed by the Fix the Charter PAC earlier this month. Supposing the ordinances pass, the expectation is someone will sue anyway, so pre-empting a suit by asking the court to rule on the matter could rectify things quickly. The concern is a suit could drag the process out, and the clock is ticking on getting candidates qualified for elections this fall.
“You need some type of resolution for the citizens,” Bellard tells me. “I think this is what happens when you leave people out of the process and rush it through.”
There are two new councils to elect, and right now the voting process is in limbo. So long as this hangs in the air, candidates can’t qualify. Secretary of State Kyle Ardoin set a July 1 deadline to fix the errors. There’s an outside possibility that council elections will be postponed.
“It’s the safe assumption that someone is waiting for the AG opinion to come out to file a lawsuit,” Fix the Charter’s Kevin Blanchard says. “To the extent that someone is going to, I would hope, in the interest of being sure that someone’s voting rights aren’t damaged, that they do so quickly.”
What to watch for: The ordinance votes at the council Tuesday night. The opinion arrived just in time. The council could table final adoption and figure it out in court, or vote the ordinances through and see what happens.
State senator requests AG opinion on charter amendment error fix
The gist: Bob Hensgens, a state senator from Gueydan, has asked Attorney General Jeff Landry to weigh in on whether an ordinance can legally fix the boundary errors associated with the new city council, split off by last year’s charter amendments.
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Get caught up, quickly: Errors in the legal descriptions of the map for the new city council districts — literally, words describing a map — have thrown the transition to separate councils into turmoil. In a lengthy report, LCG attorneys confidently argued an ordinance can fix the errors. Others, mostly charter amendment opponents, say only a public vote can legally address the problem.
Hensgens’ request comes somewhat out of left field and a day before the City-Parish Council will vote on ordinances to fix the errors. While Hensgens has voters in Lafayette Parish, mostly in the western part outside of city limits, his seat is more closely associated with Vermilion Parish. Indeed, his office is located in Abbeville. In his letter to AG Landry, Hensgens purports to be making the request on behalf of “disenfranchised voters” in his Senate district, though it’s unclear which voters he’s referring to. All of the errors occur within city limits. Around 300 voters near Downtown were left without representation. Hensgens does not represent that precinct.
He requested an expedited review, given the closing window until election qualifying. Hengens could not be reached for comment before press time.
“I think it’s great. Another set of eyes on it never hurts,” Councilman Jared Bellard tells me. Bellard authored the failed resolution to ask for an AG opinion. “We all know an AG opinion is not the law of the land.”
The ordinances are expected to pass, regardless. Councilman Bruce Conque, who opposed seeking an AG opinion, says the development likely won’t have an impact on the vote. Bellard agrees, saying he doubts it will spur any real movement to table the vote.
“I don’t think you would have the votes to table it,” Bellard says. Conque says Registrar of Voters Charlene Meaux, who first flagged the errors in December, has OK’d the changes in the ordinances.
Why this matters? This is an issue that just won’t go away. If Landry’s office contradicts LCG attorneys, that could put local council members in a bind and stretch out the controversy. His opinion has no legal bearing, but it could give further ground to dispute what LCG’s attorneys have determined is settled law. City-Parish Attorney Paul Escott emphasized at a council meeting earlier this month that he was “confident” in his view that an ordinance is the right fix to the charter errors.
“They are lawyers just like we are lawyers,” Escott said of the weight of an AG’s opinion, earlier this month. “They do not go to some magical law school that guarantees they are right and we are not.”
Will someone ask for AG opinion on the charter errors?
The gist: Even though the council won’t do it, the conventional wisdom is someone will. Or was it that someone’s going to sue? Oh, it’s both.
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3 min read
Get caught up, quickly. LCG attorneys authored a dense legal opinion that an ordinance was the right way to fix errors in the legal descriptions — words describing maps, literally — for the new city council district created by the charter amendments passed last year. “On this one I’m pretty confidant,” City-Parish Attorney Paul Escott said. Some think a second opinion from Attorney General Jeff Landry is needed. In a tense 5-4 vote, the council decided not to ask for one.
“I haven’t decided,” Mayor-President Joel Robideaux responded last night, when asked point blank by Councilman Jay Castille whether he would ask for one should the council not. Well, the council didn’t. And the m-p still hasn’t decided, according to LCG Communications Director Cydra Wingerter. (Once he decides, I’m sure I’ll be the first to know.)
The local legal opinion itself suggests an AG opinion is likely. The reasoning is that plenty of officials have the power to do it, so someone is likely to seek one out. Here are the guidelines for who can seek an AG opinion. So could various state and parish officials. Everyone’s got an opinion. And many have the opinion that we need more opinions.
Why should we?
An earnest reason: It would settle the matter, i.e., it can’t hurt to have a second pair of eyes.
A cynical reason: The AG could contradict the local attorneys and cause more upheaval.
Why shouldn’t we?
An earnest reason: This is a local matter, and the local attorneys think an ordinance is just dandy.
A cynical reason: The AG could contradict the local attorneys and cause more upheaval.
Does it matter? Yes and no. Yes because an AG opinion could settle the issue or stir up chaos. No because the council looks likely to go with an ordinance anyhow.
Everyone’s resigned that a lawsuit is coming. On what grounds, exactly, isn’t clear. Some suggested the council violated federal law by not getting the new districts precleared by the U.S. Department of Justice. But the DOJ removed Louisiana from preclearance requirements in 2013. Once again, that’s really only conventional wisdom. Clearly, the bad blood about the council split isn’t going away just yet.
Press association attorney: Yes, council members likely violated Open Meetings Law
The AG was never asked to look into the council’s discussions and won’t take legal action, thus the impact of the potential violation remains thoroughly political.