Dr. Herbert Simmons, Jackson Parish Branch (JPB) NAACP through its' President Windy Calahan, Maxie Monroe, John McCarty v. John B. Edwards, Governor of State of Louisiana

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2018 CA 1436

DR. HERBERT SIMMONS, JACKSON PARISH BRANCH (JPB)
NAACP THROUGH [ ITS] PRESIDENT WINDY CALAHAN[,]
MAXIE MONROE, JOHN MCCARTY, ET AL

VERSUS

JOHN B. EDWARDS, GOVERNOR OF STATE OF LOUISIANA

DATE OF JUDGMENT' '
AUG 0 7 2019

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 659780, SECTION 22, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA

HONORABLE TIMOTHY E. KELLEY, JUDGE

Ernest L. Johnson Counsel for Plaintiffs -Appellants
Baton Rouge, Louisiana Dr. Herbert Simmons and NAACP
Jackson Parish Branch

Madeline Sue Carbonette Counsel for Defendants -Appellees
Angelique Duhon Freel State of Louisiana through
Alicia Edmond Wheeler Governor John Bel Edwards and
Assistant Attorneys General Attorney General Jeff Landry
Baton Rouge, Louisiana

Michael John O' Shee Counsel for Defendant -Appellee
Martha R. Crenshaw Jackson Parish Police Jury
Steven M. Oxenhandler
Alexandria, Louisiana

BEFORE: WELCH, CHUTZ, AND LANIER, JJ.

D' sposition: AFFIRMED.

CHUTZ, J.

Plaintiffs -appellants, Dr. Herbert Simmons and the Jackson Parish Branch of

the NAACP,' appeal the trial court' s judgment, sustaining a peremptory exception

raising the objection of no cause of action and dismissing, with prejudice, their

claims for injunctive and declaratory relief against defendants -appellees, the State

of Louisiana through Governor John B. Edwards and Attorney General Jeff

Landry,' and the Jackson Parish Police Jury, arising out of allegations that La. Acts

2017, No. 171 ( Act 171), addressing certain hospital service district board

membership, is unconstitutional and illegal. We affirm.

With an effective date of August 1, 2017, the Louisiana legislature passed

Act 171, which states:

Section 1. Notwithstanding any provision of law to the

contrary, the governing authority of any parish with a population
greater than sixteen thousand and less than seventeen thousand,
according to the latest federal decennial census, shall have a hospital
service district board governed by five commissioners, who shall be
qualified voters and residents of the parish and shall possess the
following qualifications: one commission member who shall possess
financial expertise as the officer or owner of a bank or group of banks
in the parish, one commission member who shall possess legal
expertise as a licensed attorney in good standing in the parish who
shall not be employed by the district attorney' s office, one
commission member who shall possess medical expertise and is a
licensed practitioner at the hospital service district hospital in the
parish, one commission member who shall possess business or
accounting expertise and is a licensed certified public accountant or
who holds a master' s degree in business administration and practices
in the parish, and one commission member who shall have managerial
expertise and is employed by a manufacturer located in the parish of
products made from pulp wood or other fibrous substances with more
than two hundred employees. The commissioners shall be appointed
by a majority vote of the police jury of the parish for six year terms.

In addition to Dr. Simmons and the Jackson Parish Branch of the NAACP, this lawsuit was also
commenced with Maxie Monroe and John McCarty as party plaintiffs. But Monroe was
subsequently dismissed at her request, and in the second amending petition, McCarty was not
identified as a party plaintiff.

2 The original petition named Governor Edwards as the sole defendant. After Attorney General
Landry intervened to represent the interests of the State, Governor Edwards was dismissed from
the lawsuit in his individual capacity.

V

Section 2. The police jury of the parish shall ensure that all
necessary appointments are made such that the commission members
appointed pursuant to this Act shall assume their responsibilities on
August 1, 2017.

Mindful that the sustaining of an objection of no cause of action and

dismissing of a petition is proper only when the allegations of the petition itself

clearly showing that plaintiffs do not have a cause of action, we note that the

burden of proof is with the mover of the exception and our review of a judgment

sustaining an exception of no cause of action is reviewed by an appellate court de

novo. See Louisiana Pub. Serv. Comm' n v. Louisiana State Legislature, 2012-

0353 ( La. App. 1 st Cir. 4/ 26/ 13), 117 So. 3d 532, 537 ( en banc).

Local or Special Law:

On appeal, citing La. Const. Art. III, §12B, 3 plaintiffs contend that the trial

court erred in its conclusion that Act 171 was not a special or local law. The trial

court stated:

T] he fact that [ Act 171 ] is not unconstitutional [ as] a special or local
law, the [ Louisiana] Supreme Court has already decided this issue in
Deer Enterprises, LLC v. Parish Council of Washington Parish,
2010- 0671 ( La. 1/ 19/ 11), 56 So. 3d 936], and I have explained how

potentially other parishes could fall within [the ambit of Act 171 ], and
potentially they could fall outside of it, and that the [ act] utilizes the
correct census under our law.

The Deer Enterprises court explained:

The prohibition against certain local and special laws is

intended to reflect a policy decision that legislative resources and
attention should be concentrated upon matters of general interest, and
that purely local matters should be left to local governing authorities.
The terms " local" and " special" are used in contradistinction to the
term " general." General laws are those that operate equally and
uniformly upon all persons brought within the relations and

circumstances for which they provide or that operate equally upon all
persons of a designated class founded upon a reasonable and proper
classification. The ultimate distinction between public or general laws
and local or special laws is that the former affect the community as a
whole, whether throughout the State or one of its subdivisions; and the
latter affect private persons, private property, private or local interests.

3 La. Const. Art. III, §12B provides, " The legislature shall not indirectly enact special or local
laws by the partial repeal or suspension of a general law."

3

When the operation of a law is limited to certain parishes, it is
immediately suspect as a local law. A statute is generally considered
to be local if it operates only in a particular locality or localities
without the possibility of extending its coverage to other areas should
the requisite criteria exist or come to exist there. However, a law is
not local, even though its enforcement may be restricted to a particular
locality or localities, where the conditions under which it operates
simply do not prevail in other localities. Thus, a law is not local if its
coverage can extend to other localities or areas. Generally, a law that
applies to localities within a certain population is not a local law
because other localities potentially can meet the population trigger
and become subject to the particular law.

Deer Enterprises, 56 So. 3d at 942 ( citations and quotations omitted).

The operation of Act 171 is presently limited to the parish of Jackson by

virtue of its population. It is therefore immediately suspect as a local law.

However, as noted by the trial court, the provisions of Act 171 may extend its

application to other parishes if the requisite criterion comes to exist there, i.e., if

those parishes fall within the population range. It is also possible that Jackson

Parish may expand or contract beyond the reach of Act 171. Because the triggering

criterion is the range of 16, 000 residents, which is tied to the latest decennial

census, and the 2020 census is nearing, a shift in the act' s coverage in the future

appears possible. Indeed, according to plaintiffs, recent statistics show a decline in

the population of Jackson Parish since the 2010 census. The elastic application of

Act 171 and the fluid nature of population dynamics militate against finding it is

prohibited as a local law.

In contrast to a local law, the Deer Enterprises court provided the following

explanation of a special law:

A special law confers special privileges or imposes peculiar
disabilities or burdensome conditions in the exercise of a common
right upon a class of persons arbitrarily selected from the general body
of those who stand in precisely the same relation to the subject of the
law. A special law is generally one that operates on and affects only a
fraction of the persons or a portion of the property encompassed by a
classification, granting privileges to some persons while denying them
to others. In other words, a law is special if it affects only a certain

Ll

number of persons within a class and not all persons possessing the
characteristics of the class. A special law is directed to secure some
private advantage or advancement for the benefit of private persons.
The prohibition on special laws represents an important safeguard
against the abuse of legislative power on behalf of special interests.

Deer Enterprises, 56 So. 3d at 543- 44 ( citations and quotations omitted).

The objects and purposes of hospital service districts and the governing

bodies include ownership and operation of hospitals for the care of persons

suffering from illnesses or disabilities which require that patients receive hospital

care; the administration of other activities related to rendering care to the sick and

injured or in the promotion of health which may be justified by the facilities,

personnel, funds and other requirements available; the promotion and conducting

of scientific research and training related to the care of the sick and injured insofar

as such research and training can be conducted in connection with the hospital;

participation so far as circumstances may warrant in any activity designed and

conducted to promote the general health of the community; and the cooperation

with other public and private institutions and agencies engaged in providing

hospital and other health services to residents of the district. See La. R.S. 46: 1052

relative to hospital service districts created by police juries of parishes).

In light of the objects and purposes of hospital service districts, Act 171 does

not appear to affect " the exercise of a common right," and does not bear the

significant distinction of securing private advantages for private persons. Thus, the

trial court correctly implicitly determined that Act 171 is not aimed at special

interests.

Moreover, to the extent that plaintiffs are asserting that Act 171 subjects

those parishes that meet the population criterion to a different set of rules simply

because of demographic distribution which, they maintain, shows a patent grant of

privileges to some while denying them to others, we find no merit in this

R

contention. As noted by the Deer Enterprises court, a privilege is a special legal

right, exemption, or immunity granted to a person or class of persons; an exception

to a duty. A privilege grants someone the legal freedom to do or not to do a given

act. Deer Enterprises, 56 So. 3d at 944. Because Act 171 includes defined

qualifications for commissioners, none of which Dr. Simmons and ostensibly all

other African American residents of Jackson Parish possess, a privilege has been

bestowed on those that meet the criteria. But the fallacy of plaintiffs' assertion is

that no citizen has an inherent right to an appointment on a hospital service district

board. It is the members of the Jackson Parish Police Jury who determine those it

will appoint to the Jackson Hospital Service District. Therefore, Act 171 does not

deny or grant the privilege of appointing members to the hospital service district

board. That right remains with the parish police jury.

Lastly, based on the allegations of plaintiffs' petition and their assertions

before the trial court and now on appeal, they have simply failed to identify any

special interests" that are served by Act 171. Accordingly, Act 171 is not an

unconstitutional abuse of legislative power.

Prohibited Retroactive Application:

Plaintiffs assert that Act 171 is a substantive law that is retroactive in its

application because it relies on the 2010 census. However, a clear reading of Act

171 shows that the population criterion is based on " the latest federal decennial

census,"
rather than merely the 2010 census. See and cf. State v. Brazley, 2000-

0923 ( La. 11/ 28/ 00), 773 So. 2d 718, 721 ( enactment was unconstitutional where it

specified the " 1990 U.S. Decennial Census," a fixed determination).

According to La. C. C. art. 6, " In the absence of contrary legislative

expression, substantive laws apply prospectively only. Procedural and

interpretative laws apply both prospectively and retroactively, unless there is a

m

legislative expression to the contrary." Additionally, La. R.S. 1: 2 provides that

n] o Section of the Revised Statutes is retroactive unless it is expressly so stated."

To determine whether a law should be retroactively applied, courts must first

ascertain whether the legislature expressed its intent regarding retrospective or

prospective application. If the legislature did so, the inquiry is at an end. If the

legislature did not, the court must classify the enactment as substantive,

procedural, or interpretive. Notwithstanding this analysis, even where the

legislature has expressed its intent to give a law retroactive effect, the law may not

be applied retroactively if doing so would impair contractual obligations or disturb

vested rights. MACWCP H LLC v. Williams, 2017- 0004 ( La. App. 1st Cir.

9/ 15/ 17), 231 So. 3d 665, 669, writ denied, 2017- 1750 ( La. 12/ 5/ 17), 231 So. 3d

624.

Plaintiffs maintain that because Dr. Simmons was an appointed

commissioner of the Jackson Parish Hospital Service District Board who had not

completed his term,' the application of Act 171, requiring the specified criteria for

commissioners appointed to the hospital service district board, operated to

retroactively impair contractual obligations or disturb him of his vested rights.

In its oral reasons for judgment, the trial court stated:

T] here is no vested right in an appointed position. It is an appointed
position that can be dissolved in a number of ways over the objection
of the appointee....

There is no vested right under our federal constitution or under
our state constitution to an appointed position to a body. There being
no vested right, there is no concern about whether [ Act 171 ] is
retroactive.

The appointment to a public office is not a contract. Boyer v. St. Amant, 364 So. 2d

1338, 1340 ( La. App. 4th Cir.), writ denied, 365 So. 2d 1108 ( La. 1978).

4 See La. R.S. 46: 1053( BB) (" In the parish of Jackson, the Jackson Parish Hospital Service
District shall be governed by a commission composed of seven members. The additional
members provided for by this Subsection shall be appointed by the police jury for initial terms of
six years each and their successors shall serve six- year terms.").

I

Additionally, it is well settled that a person elected to a public office has no vested

prospective right that prevents a legislative branch, or other proper authority, from

abolishing the office. See Hoag v State ex rel. Kennedy, 2001- 1076 ( La. App. 1 st

Cir. 11/ 20/ 02), 836 So. 2d 207, 220 ( en Banc), writ denied, 2002- 3199 ( La.

3/ 28/ 03), 840 So. 2d 570. Accordingly, as a matter of law, Act 171 did not impair

any contractual obligations affecting Dr. Simmons -- or any other potential African

American appointee -- in either maintaining the appointment as a commissioner to

Jackson Parish Hospital Service District Board or as to any emoluments of that

appointment. And for the same reasons, neither Dr. Simmons nor any other African

American resident of Jackson Parish was deprived of a vested right.

Violation of the Voting Rights Act of 1965:

Plaintiffs aver that by eliminating his appointment, Act 171 eliminated the

opportunity for African Americans to participate in the electoral process in

violation of the Voting Rights Act. According to 52 U.S. C.A. § 10301( a):

No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State ... in a
manner which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color, or in
contravention of the guarantees set forth in ... this title.

In addressing this assertion by plaintiffs, the trial court stated:

Act 1.71] does not violate the Voting Rights Act, as there is no
elected position associated with [ plaintiffs' claims]. There is no
general voting on this issue. It is the [ police jury] that makes the
appointment. It is not an elected position.... There is no right to have
a vote on these matters from the general population.

Plaintiffs have failed to allege any facts that could support a finding that they were

entitled to vote on the appointment of the commissioner for the Jackson Hospital

Service District Board so as to support a violation of the Voting Rights Act.

Equal Protection Violation:

Plaintiffs claim that Act 171 violated their equal protection rights. See La.

Const. Art. I, § 3; U.S. Const. Amendment 14. They urge that because Act 171

applies only to Jackson Parish, it treats the parish differently from all other

parishes with hospital service districts.

Generally, the state constitutional guarantee of equal protection mandates

that state laws affect alike all persons and interests similarly situated. The equal

protection clause, however, does not require absolute equality or precisely equal

advantages. It is possible for parties to be treated differently without violation of

equal protection rights. Equal treatment of all claimants in all circumstances is not

required. The law merely requires equal application in similar circumstances.

Where the challenged classification is based on grounds other than discrimination

because of birth, race, age, sex, social origin, physical condition, or political or

religious ideas, the law creating the classification is presumed to be constitutional.

Thus, the party challenging the constitutionality of the law has the burden of

proving it unconstitutional by showing the act fails to serve a legitimate

government purpose. Dale v. Louisiana Secy of State, 2007- 2020 ( La. App. 1st

Cir. 10111107), 971 So. 2d 1136, 1143 ( per curiam).

Initially, we question whether the population criterion set forth in Act 171 is

alike and similarly situated to persons and interests in other hospital service

districts so as to require the state constitutional guarantee of equal protection. But

even assuming arguendo that is does, because Act 171 is not based on any suspect

classification, it requires only that the legislature' s enactment serve a legitimate

governmental purpose. The powers and duties of commissioners to hospital service

district boards include representing the public interest in providing hospital and

medical care in the district; providing advice to the police jury and the hospital

E

director on problems concerning the operation of the hospital and other facilities;

making, altering, amending, and promulgating rules and regulations governing the

conduct of the hospital; conducting hearings and passing upon complaints by or

against any officer or employee of the district; reviewing and modifying, or setting

aside any action of the officers or employees of the district which the commission

may determine to be desirable or necessary in the public interest; appointing, with

the approval of the medical staff, a director of the hospital and performing such

other duties as may now or hereafter be required by law; appointing the necessary

standing and special committees that may be necessary to carry out the purposes of

the hospital service district; establishing rates of pay for the use of facilities

provided by the district; and entering into lease agreements with recognized and

duly constituted nonprofit associations that are primarily engaged in the operation

of hospitals. See La. R.S. 46: 1055 ( relative to the powers and duties of

commissioners of hospital service districts created by police juries of parishes).

Given the objects and purposes of hospital service districts, see La. R. S. 46: 1052,

as well as the duties required of a hospital service district commissioner, we can

readily discern that the particularized qualifications of commissioners to the

hospital service district board of parishes with populations of 16, 000 is legitimately

served by the appointments of persons with specialized areas of expertise.

Therefore, plaintiffs have failed to allege an equal protection violation.

Due Process Violation:

Plaintiffs suggest that Act 171 violated their substantive due process rights,

suggesting that their rights to vote and participate in the electoral process are

fundamental for which they cannot be deprived. See La. Const. Art. I, § 2; U.S.

Const. Amendments 5 and 14.

10

A statute violates notions of substantive due process when it does not bear a

real and substantial relationship to an appropriate governmental objective. The test

is whether the regulation is reasonable in relation to the goal to be attained and is

adopted in the interest of the community as a whole. Dale, 971 So.2d at 1143.

The barebones allegations of fact contained in plaintiffs' petition do not state

how or when they were denied the right to vote or otherwise participate in the

electoral process. Act 171 clearly bears a real and substantial relationship with the

goals of hospital service district boards. See e. g., La. R.S. 46: 1052 and 1055.

Additionally, a reasonable relationship exists between the hospital service districts'

goals and the provisions of Act 171, which specifies certain qualifications for

particularized expertise of the appointed commissioners. Accordingly, plaintiffs

have failed to allege any substantive due process violations.

After a thorough review of the allegations of plaintiffs' petition, we agree

with the trial court that plaintiffs have failed to state a cause of action entitling

them to either injunctive or declaratory relief. Subsequent to an earlier amendment

of their petition, the trial court allowed plaintiffs to amend their petition a second

time, after a hearing on September 7, 2017. Although La. C. C. P. art. 934 permits

amendment of the petition when the grounds of the objection pleaded by the

peremptory exception may be removed, on appeal, plaintiffs do not contend that

they are entitled to another amendment, and we find no error in the trial court' s

dismissal of all their claims against defendants. See Rombach v. State ex rel. Div.

of Admin., 2015- 0619 ( La. App. 1 st Cir. 12/ 23/ 15), 2015 WL 9464500, * 7, writ

not considered, 2016- 00214 ( La. 4/ 4/ 16), 190 So. 3d 1200.

11

DECREE

For these reasons, the trial court' s judgment is affirmed. Appeal costs are

assessed against plaintiffs -appellants, Dr. Herbert Simmons and the Jackson Parish

Branch of the NAACP.

AFFIRMED.

12

DR. HEBERT SIMMONS, ET AL. 2018 CA 1436

FIRST CIRCUIT
VERSUS

COURT OF APPEAL

JOHN B. EDWARDS, GOVERNOR STATE OF LOUISIANA
OF THE STATE OF LOUISIANA

LCH, J., dissenting.

I disagree with the majority' s opinion that Act 171 is not a local or special

law. Despite the act' s population criterion of "a population greater than sixteen

thousand and less than seventeen thousand, according to the latest federal

decennial census," which is presently limited to Jackson Parish by virtue of its

population, I find that the legislative history indicates that the legislature intended

Act 171 to be a local law and operate in the particular locality of Jackson Parish.

See State v. Brazley, 2000- 0923 ( La. 11/ 28/ 00), 773 So. 2d 718, 721- 22.

Legislation is the solemn expression of legislative will, and, therefore, the

interpretation of the law involves, primarily, the search for the legislature' s intent.

Motorola, Inc. v. Associated Indem. Corp., 2002- 0716 ( La. App. 1 Cir. 4/ 30/ 03),

867 So. 2d 715, 719. Intent expressed at the appropriate legislative committee

meetings is an aid to the courts in determining the true legislative intent and

purpose behind the law. Bridges v. Smith, 2001- 2166 ( La. App. 1 Cir. 9/ 27/ 02),

832 So. 2d 3075 311, writ denied, 2002- 2951 ( La. 2/ 14/ 03), 836 So. 2d 121.

The broadcast archived video of the Senate Committee on Health and

Welfare for April 26, 2017, reflects, with regard to Act 171 ( Senate Bill No. 219),

that the bill was presented by its author, Senator James R. " Jim" Fannin, who

explained that the bill dealt with certain hospital service districts:

I]t is a population of between 16, 000 and 17, 0000, and
you know, it' s a hospital in my parish, where I live.
We' ve had many issues through the years even when I

was president of the police jury. It' s a rural hospital, and
I think all of you know what challenges today that rural
hospitals, along with many other hospitals have,
financially.' [ Emphasis added.]

Senator Fannin also presented his bill before the House Committee on

Health and Welfare. The archived video for May 18, 2017, reflects that Senator

Fannin testified:

This bill does two things: it changes the number of
hospital board members in a service district with a parish
population 16 to 17, 000, which is only one parish in the
state. And the five board members that will be on the
board, it puts a criterion inby which the
place

qualifications that they would have to have in order to be
appointed by the police jury. The policy jury appoints the
seven now. The policy jury would continue to appoint
them, it would just be five instead of seven. And those
five would have to have qualifications in order to be
appointed by the jury."' [ Emphasis added.]

Act 171 specifically requires that " one commission member who shall have

managerial expertise and is employed by a manufacturer located in the parish of

products made from pulp wood or other fibrous substances with more than two

hundred employees." This provision only applies to Jackson Parish. As Senator

Fannin pointed out in the committee meeting as he was explaining his bill, this

provision was placed in the legislation only because the local paper mill had to be

within a certain distance from the hospital emergency room. Senator Fannin

wanted someone from the paper mill on the hospital service board for the Jackson

Parish Hospital.

It is clearly evident that the legislature intended Act 171 to apply to Jackson

Parish, and more specifically, to the hospital service board for the Jackson Parish

Louisiana State Senate, Senate Broadcast Archived Videos, " Health and Welfare" ( April 26,
2017), 6: 13- 6: 51, http:// senate. 1a. gov/video/ videoarchive. asp?v= senate/ 2017/ 04/ 042617H—W_ 0
last accessed July 18, 2019).

2 Louisiana House of Representatives, Archived Video, " Health and Welfare" ( May 18, 2017).
4: 49- 5: 28,
http:// house. louisiana.gov/H_Video/ VideoArchivePlayer. aspx?v=house/ 2017/ may/ 0518_ 17_ HW
last accessed July 18, 2019).

2

Hospital located in Jonesboro, to which Senator Fannin repeatedly referenced

when discussing the specifics of his bill. For these reasons, I find that Act 171 is a

local law in violation of La. Const. Art. III, § 12. 1 find that the plaintiffs have

asserted a valid cause of action.3

Further, the plaintiffs have set forth a cause of action of racial discrimination

in alleging that this bill targeted one African-American for removal from the

hospital service board for the Jackson Parish Hospital in violation of the Louisiana

Constitution.

I would reverse the trial court' s sustaining of the defendants' peremptory

exception raising the objection of no cause of action and reinstate the plaintiffs'

claims for injunctive and declaratory relief.

3 The House of Representatives and Senate Archived Videos prove conclusively that Act 171
was intended to be a local law.

3