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| Defeat SB543 |
Subject: Defeat SB543
by LaDads on 2008/5/11 14:48:59
Dear Civil Law and Procedure Committee,
Re: SB543 On Legislative Continuances
Please reject SB543 by Quinn.*
This proposed legislation will undermine the Jindal ethics reforms and it will cause serious public embarrassment to the legislature in the near term future.
1) Legislative continuances have a financial value to all legislative-attorneys. Please make sure that all attorneys are in compliance with the ethics rules of this state.
2) The expansion of the legislative continuances perk is hidden because they chose to erase all existing legislation and rewrite it. It takes close scrutiny to see the key changes that expand this policy.
3) This is the second major bill in as many years where the Senate has failed to do its job and has passed unanimously a horrendous bill. Last year, this committee stopped and modified the Uniform Child Abduction Prevention act** before it did serious harm to the citizens of Louisiana. I ask that you again stand tall and stop a very bad bill.
4) A word document providing additional supportive details is attached.
SERIOUS FLAWS:
1) As written, it seriously expands the court black out days caused by legislative exemptions.
Under current law, legislative activities out of the regular session {4163 A(3)(b) lines 20-25 on page 2 of the bill} are only currently granted 'reasonable period of time' delays {4163 lines 11-14 of page 3} the mandatory 60 day delay only applying to some type of legislative session or constitutional convention (A)(3)(a), (c), and (d) {4163 lines 7-10 of page 3}
Under the new law, legislative activities out of the regular session are now under section 4163 C(3) {lines 17-22 of page 4}. The delay for these activies are now given a mandatory 60 day continuance per 4163 E(2) {lines 5-8 of page 5}.
As a result, any attorney-legislator involved in bi-monthly (every 60 days) standing committee meetings, whether they attend or not, is being granted a mandatory 60 day continuance which in practice grants them a mandatory exemption from any court action for the duration of their term in office.
No other state, see analysis in word document, grants a 60 day extension for committee activities. Their laws either only except the day of the committee meeting or 1 day before and 1 day after the committee meeting.
If passed, this provision will be abused.
If you consider passing this bill, at least amend (C)(3) from sixty days down to ONE day.
5 (2) If the grounds for the motion are pursuant to Paragraph (C)(3), the
6 continuance or extension shall be granted for a period of not less than ONE day
7 from the date the activities giving rise to the need for the continuance or
8 extension cease.
2) As written, this bill and existing law violates the separation of powers doctrine. The Wisconsin Appeals court in 2003 in the case of State v. Chvala ruled that the Wisconsin law was unconstitutional unless it provided the judges the discetion to set the case for trial in the interest of justice. Chvala was a Wisconsin Legislator who was charged with misconduct in public office and violation of campaign finance statutes. See the references in the word document.
3) As written, this bill and existing law violates the due process clauses of the Fourteenth amendment to the U.S. Constitution and Article I, Sections 13 (open courts) and 19 (due process) of the Texas Constitution. {please find the related Louisiana Constitution laws} exemption for cases where the non-movant would be irreparably harmed or injury of a substantial right as decided by the Texas courts in Waites v. Sondock. In Waites, the mother proved that she would suffer harm if the court delayed the enforcement of her child support order. {Yes, we are for fair play - we only fight the abusive application of child support laws}
Louisiana laws have no built in protections allowing the courts the discretion to refuse a continuance asked for in bad faith simply to delay a case.
Please amend the law from being 'peremptory' (C.C.P. 1602) to being 'discretionary' (C.C.P. 1601) for certain cases that are time sensitive or where substantial harm may occur if the delay is granted.
Any case involving a protective orders.
Any case involving a violent felony - especially revoking parole.
Any case involving child support.
A. A member of the legislature and a legislative employee shall have DISCRETIONARY grounds for continuance or extension of a criminal case, civil case, or administrative proceeding as provided below. The continuance or extension shall be sought by written motion specifically alleging these grounds.
B. The DISCRETIONARY grounds for continuance or extension is available to a member of the legislature, the clerk of the House of Representatives, the secretary of the Senate, and an employee of the House of Representatives, the Senate, or of the Legislative Bureau when such person is serving or employed full-time during a session of the legislature.
C. The DISCRETIONARY grounds for continuance or extension is available if the presence, participation, or involvement in any capacity of such person is required in any criminal case, civil case, or administrative proceeding, including, but not limited to, pre-trial and post-trial proceedings, discovery, and other deadlines, during:
This amendment is a bit broader than I intend as it applies to all case. It should just apply to specific cases mentioned above. Also see the Texas law - they make the delay discretionary in civil cases where the attorney signed on 30 days before trial and in criminal cases 15 days before trial.
4) Amend the bill to require that all motions for legislative continuances be filed with the Louisiana ethics baord. For example, amend 1463 E to include: {burden the courts or burden the attorney? lets burden the courts, they are neutral and have no basis for not submitting to this requirement !}
E. Within seventy-two hours of the filing of a motion for a legislative continuance or extension, the court or agency shall grant the continuance or extension ex-parte as follows:
(1) The court shall file a copy of the motion for legislative continuance with the Louisiana Ethics Board.
(2) If the grounds for the motion are pursuant to Paragraph (C)(1) or (2),
Texas has already gone through the pain of revising their laws because of the abuses of certain legislators (see attached word documents). Let's learn from their mistakes.
5) Amend the bill to require all motions to require in the affidavit that the attorney will actively participate in the case and that they did not take the case solely for the purposes of delay.
D. A motion for legislative continuance or extension filed by a legislative employee shall be accompanied by an affidavit, stating the grounds for the continuance. The affidavit is proof of the necessity for a continuance. The affidavit need not be corroborated. the affidavit must contain a declaration that it is the attorney's intention to participate actively in the preparation or presentation of the case and that the attorney has not taken the case for the purpose of obtaining a continuance under this section. verifying such employment or service, executed by the presiding officer or the clerk or secretary of the respective house.
6) Any other amendments that you see fit to add after reading the laws from the other states.
Nicholas James
president@ladads.org
225-772-2047
* Actually, Since the current law is also seriously flawed I would prefer that you seriously amend the law to make reforms in the correct direction. However, since legislating on the fly is never a good idea - since one small mistake can undermine the best of intentions - the best option would be to send it to an LSLI committee to ensure that the revisions are properly thought through.
** Louisiana was the first state to modify the UCAPA law. It passed in at least 7 other states with hardly a murmur of opposition. It was only when it got to Louisiana's Civil Law and Procedure committee that it was actually reviewed. Thank you very much Harold Murry, atty, for appearing to testify at the last minute. And also thanks to Rep. Shirely Bowler - a NON-attorney who was instrumental in getting the changes made. So the question is, what happened to all of the other attorneys? Were they asleep? bribed? corrupt? negligent? This bill allowed people to be punished because they had family that lived in other states... because they had 'cultural or emotional' ties to another state... because they fulfilled a parental obligation to pick up their children's birth certificates, medical records or school records..
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