This week, the Louisiana Supreme Court decided that it will not rule on the constitutionality of the 1009 process in the Barber case, due to a procedural issue with 19th JDC Judge Johnson’s initial decision.
The Supreme Court gave the following explanation for its determination in a release (emphasis added):
“We find the constitutional issue was not properly raised in district court. The district court considered plaintiffs’ allegations of unconstitutionality in the context of a hearing on plaintiffs’ motion for preliminary injunction. It is well settled that a court may not declare a statute unconstitutional in the context of a summary proceeding such as a preliminary hearing […] In the instant case, the July 30, 2015 judgment indicates the case came before the court for a hearing on a motion for preliminary injunction filed by plaintiffs. The record does not suggest the parties agreed to try the declaratory action at this hearing. As a result, the constitutional issue was not properly postured for resolution […] we lack appellate jurisdiction over this case.”
Additionally, the Supreme Court notes that, although Judge Johnson did discuss constitutionality in his first ruling back in June, that document is understood to be “reasons for judgment rather than an actual judgment.”
In response to this latest event, Jennifer Barber Valois, one of the attorneys driving the case, said, “It’s what we knew and expected, we were always going to have to have a full hearing on the permanent injunction. My personal immediate concern is the lack of an OWCA Medical Director and the fact that the agency is contracting with private physicians to make 1009 decisions while the hiring process continues. We have many injured workers trapped in the process. It’s difficult to know how to proceed with denied medical requests given the current state of affairs.”
Other comp attorneys unconnected with the case were unfazed but hopeful for expediency.
“It looks like the Supreme Court got this one right procedurally,” Kirk Landry, attorney with Keogh Cox in Baton Rouge said. “While the relief sought by the claimants was quite broad, and Judge Johnson’s ruling was as well, the written judgment is what controls and the written judgment was much narrower than the reasons for judgment.”
Like Landry, Jeffrey Napolitano, with Juge, Napolitano, Guilbeau, Ruli & Frieman in Metairie, found the determination as it relates to the procedural issues to be accurate. “Since the constitutional issue per se has not yet been litigated and ruled on by the district court…it will now be the job of the appellate court to determine whether the trial court was justified in finding that plaintiffs carried their burden of proof,” Napolitano said in an emailed statement. He noted that the burden is a triple threat, consisting of three factors:
(1) that the plaintiffs will suffer irreparable injury if the injunction is not issued,
(2) that they are entitled to the relief sought as a matter of law, and
(3) that they are likely to prevail at trial on the issue of constitutionality of the statutes in question.
If the appellate court disagrees on any of these three issues, Napolitano explained, then it may reverse the granting of the preliminary injunction and require a trial on the merits. However, if the appellate court agrees on all points, the trial court could then lift its own stay order (issued back in July) and enjoin the enforcement of the statutes pending the trial on the merits in the declaratory action – meaning that the 1009 process could potentially be paralyzed until this case is resolved.
Given the winding path that lies ahead in light of the Supreme Court’s refusal, Bobby Truitt (an attorney with his own Truitt Law Firm in Covington) found the ruling “interesting,” but noted that it mainly just “places the parties back at square one,” about which he expressed some disappointment. “The plaintiffs in the case will now have to file a formal petition asserting the unconstitutionality of the workers’ comp revisions,” Truitt explained. “All this does is delay the eventual decision, which is a shame for all of the stakeholders.”
For his part, Steve Wanko, a claimant representative with his own Wanko Law Firm in Covington, was optimistic. “I do not think that the Supreme Court’s refusal does anything other than delay the inevitable,” he said. “In fact, this will allow additional ammunition for what we hope is a Supreme Court decision in the plaintiffs’ favor.”
Image Credit: The Louisiana Supreme Court building in New Orleans, Times-Picayune archive