Marionneaux v. Hines

902 So. 2d 373, 2005 La. LEXIS 1509, 2005 WL 1279106
Supreme Court of Louisiana·Decided May 17, 2005·No. 2005-OC-1191·Published·Cited by 1 cases

Opinion

902 So.2d 373 (2005)

Robert M. MARIONNEAUX, Jr., and Lee Joseph "Jody" Amedee, III
v.
Donald E. "Don" HINES, President of the Senate, and Arthur J. Lentini, Parliamentarian of the Senate.

No. 2005-OC-1191.

Supreme Court of Louisiana.

May 12, 2005.
Opinion Issued May 17, 2005.

*374 Unglesby & Marionneaux, Robert M. Marionneaux, Jr., Jerry J. Guillot, Glen A. Koepp, Mary F. Quaid, Baton Rouge, Alfred W. Speer, II, Clayton, Law Offices of Gauthier & Amedee, Lee J. Amedee, III, Gonzales, Arthur J. Lentini, APLC, Arthur J. Lentini, Metairie, Counsel for Applicant.

DECREE

For the reasons to be recited in an opinion to follow, judgment is rendered in favor of plaintiffs and against defendants on plaintiffs' petition for declaratory judgment. Accordingly, it is ordered, adjudged and decreed that there be judgment herein declaring that "elected members" or "members elected" as that term is used in the Louisiana Constitution in referring to the members of the Senate means the entire membership authorized to be elected, regardless of any vacancies, so that the current number of "elected members" or "members elected" of the Senate is thirty-nine.

WEIMER, J.

This petition for declaratory judgment is before the court for a determination of the number of votes required for final passage of bills by the Louisiana Senate during the current legislative session in light of a "vacancy"[1] in two of the 39 senatorial districts, which vacancies reduce the number of senators from the usual 39 to 37. Thus, *375 the issue is whether "elected members" as used in the Louisiana Constitution means, as plaintiffs/intervenor contend, "the entire membership authorized to be elected to each house" or whether "elected members" means, as defendants content, the elected, seated, and sworn members. In sum, plaintiffs suggest vacancies should be counted to determine the number of "elected members" whereas defendants suggest vacancies should not be counted.

The litigants, all Louisiana legislators, dispute whether the number required for a simple majority remains at 20, as the plaintiffs argue, or is reduced to 19, as the defendants assert, and whether the number required for a two-thirds vote remains at 26, as the plaintiffs argue, or is reduced to 25, as the defendants assert. We resolve this extraordinary issue in favor of the plaintiffs and hold that "elected members" or "members elected" as those terms are used in the Louisiana Constitution in referring to the members of the Senate means the entire membership authorized to be elected, regardless of any vacancies, so that the current number of "elected members" or "members elected" of the Senate is 39.

FACTS AND PROCEDURAL STATUS

The Louisiana legislature consists of a Senate and a House of Representatives. La. Const. art. III, § 1(A). The legislature is a "continuous body during the term for which its members are elected." La. Const. art. III, § 1(B). Article III, § 3 provides that the number of members of the legislature shall be provided by law, but the number of Senators shall not exceed 39 members. Louisiana Revised Statutes 24:35.1 provides the senate shall be composed of 39 members, elected from 39 senatorial districts.

On January 12, 2004, the oath of office for members of the Louisiana Senate was taken by 39 duly elected individuals. However, on April 12, 2005, Senator Lambert Boissiere resigned, creating a vacancy in the senate seat for District No. 3. A primary election to fill the vacancy is scheduled for May 21, 2005, with a general election, if necessary, scheduled for June 18, 2005. The unfortunate death of Senator John J. Hainkel, Jr., on April 15, 2005, created a vacancy in District No. 6. A primary election to fill that vacancy is scheduled for June 4, 2005, with a general election, if necessary, scheduled for July 9, 2005.

When the legislature convened at the state capitol in Baton Rouge at noon on April 25, 2005, to conduct the 2005 regular session, there were 37 senators and two vacancies. As the regular session must conclude on or before June 23, 2005, the vacancies will exist during most, if not all, of the current session. Thus, the number of senators required for a quorum, a simple majority, and a two-thirds majority became a disputed issue.[2]

Senator Robert M. Marionneaux, Jr., of District No. 17, and Senator Lee Joseph "Jody" Amedee, III, of District No. 18, filed a petition for declaratory judgment in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. They named as defendants Senator Donald E. "Don" Hines of District No. 28, who serves as President of the Louisiana Senate, and *376 Senator Arthur J. Lentini of District No. 10, who serves as Parliamentarian of the Louisiana Senate. The petition, the answer, memoranda, and stipulations were filed on May 4, 2005. The House of Representatives intervened in the suit.

After the district court scheduled a hearing for May 16, 2005, all parties filed an application directly to this court, seeking either immediate consideration by this court, without a trial court decision, or an order from this court directing the trial court to immediately consider the matter. We granted certiorari and ordered the record brought up to this court for immediate resolution. Marionneaux v. Hines, 05-1191 (La.5/10/05), 902 So.2d 373.

DISCUSSION

The threshold issue regarding exercise of our supervisory jurisdiction is twofold: first, the need to bypass the lower courts because of the extraordinary nature of this controversy; second, the necessity of a justiciable controversy for rendering a declaratory judgment.

The Supreme Court of Louisiana has been granted supervisory powers since the Louisiana Constitution of 1879. Albert Tate, Jr., Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul. L.Rev. 429, 430 (1964). Supervisory authority of this court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court. Progressive Security Insurance Company v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, 678 n. 3. This court can intervene under its own plenary supervisory powers, whether or not an intermediate court has properly acted on the matter. Tate, supra, at 430.

Although this court does not exercise its supervisory jurisdiction lightly, there are instances in which writs are granted even though the relator has not exhausted available remedies in the lower court. Comment, Supervisory Powers of the Supreme Court of Louisiana Over Inferior Courts, 34 Tul. L.Rev. 165, 171 (1959); see also Hainkel v. Henry, 313 So.2d 577, 578 (La.1975). Due in part to proper deference to the lower courts, this court must remain reluctant to exercise its authority to hear a matter prior to a lower court determination. However, this matter presents itself in a particularly uncommon fashion in that the parties stipulated to all facts and the matter presents only a question of law which affects presently pending legislation and the conduct of the legislature during this session, as well as future legislative sessions. Id. Absent a prompt response by this court, legislative actions now in progress may be invalid, thus spawning future litigation. The ultimate issue of the meaning of "elected members" as used in the Louisiana Constitution of 1974 (see

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