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In April 2016, Louisiana Governor John Bel Edwards (D) signed Executive Order JBE 2016 – 11, which sought to protect lesbian, bisexual, gay and transgender individuals, among other protected classes, from discrimination practiced by state contractors.
After its issuance, the order was challenged by Louisiana Attorney General Jeff Landry (R) and others in a lawsuit filed in East Baton Rouge Parish.
Landry sought a permanent injunction on the adoption and enforcement of the executive order, as well as a declaratory judgment that the executive order was null and void as an ultra vires act in violation of state law. Landry argued that Edwards's conduct conflicted with existing law, violated the separation of powers established by the Louisiana Constitution, created a newly protected class of persons not recognized by law, and violated the U.S. Constitution.
Edwards denied these assertions, arguing that the executive order was a lawfully issued policy directive relating to state contracts and the employees of state contractors.
On Dec. 14, 2016, Judge Todd Hernandez of the 19th Judicial District Court, located in Baton Rouge, agreed in part with Landry and issued an order permanently enjoining the executive order and declaring it illegal as a matter of law. The court specifically held that the executive order "is a violation of the Louisiana Constitution's separation of powers doctrine and an unlawful usurp of the constitutional authority vested only in the legislative branch of government." The court explained that the "Executive Order . . . constitutes an unlawful ultra-vires act because, regardless of [the governor's] intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana Law as opposed to directing the faithful execution of the existing laws of this state pursuant to the authority granted unto the office of the Governor to issue executive orders."
Edwards has declared his intent to appeal the Dec. 14, 2016, order. However, pending appeal, Edwards stated that his office will not seek enforcement of the executive order. This will result in the removal of the order's protections for LGBT employees of state contractors in the state of Louisiana.
This ruling creates regulatory uncertainty for state contractors while the appellate process runs its course. But, for now, the order is without effect.
Andrew P. Burnside and Hal D. Ungar are attorneys with Ogletree Deakins in New Orleans. © Ogletree Deakins. All rights reserved. Reposted with permission.
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