GUEST COLUMN: THE RULE ON LEGISLATIVE CONTINUANCES IS AN INVITATION TO ABUSE. HERE'S WHY.

The Louisiana Supreme Court recently heard arguments regarding the constitutionality of an obscure law that gives state legislators an unfettered right, at no cost, to seek unlimited continuances of any deadlines when they serve as lawyers in state criminal, civil or administrative proceedings.

The law applies broadly — whenever the legislator’s private legal services are required “in any capacity” — during any legislative session or constitutional convention.

Worse, judges are required to grant “legislative continuances” even if the lawyer-legislator is not the lead attorney, and even when co-counsel is available to appear in court. The law gives no consideration to overburdened court dockets, expert witnesses or opposing counsel who declined other cases to abide by the court’s schedule.

These continuances can prolong the agony of crime victims and separate children from parents, delay awards of child and spousal support and deny protective order hearings for domestic violence victims.

Judges formerly could limit continuances to general legislative sessions when the legislator was lead counsel. Multiple revisions created the current statute, and it is ripe for abuse. It empowers legislators to use their public office to delay judicial proceedings for unreported private compensation simply by placing their names on legal documents.

Some states have deemed legislative continuances to be an unconstitutional infringement on the separation of powers. Others have taken steps to curtail abuse. Georgia prohibits mandatory continuances unless a legislator is “lead counsel” and gives judge’s discretion to deny continuances for non-session “legislative duties.”

Texas requires legislators to file “active participation” affidavits, Texas Ethics Commission reports and compensation disclosure.

Several Louisiana lawmakers recently filed bills to expand legislative continuances — while actively enrolled in private cases where their abuse of the privilege has been challenged.

In 2022, Rep. Kyle M. Green, Jr., D-Marrero, filed House Bill 644 to expand continuance privileges to members of the Louisiana Public Service Commission and the state Board of Elementary and Secondary Education.

His bill also would have mandated a $1,000 minimum attorney-fees award from challenging counsel, required judicial notice of legislative calendars and provided direct “free” appeals to the Louisiana Supreme Court. At the time, Green had already been granted eight legislative continuances in a 2019 case, with a ninth granted after he scheduled a committee hearing on a 2022 trial date.The House passed his bill 95-1, but it died in Senate committee.

In 2023, Rep. Edmond Jordon, D-Baton Rouge, filed House Bill 544, essentially replicating Green’s bill while adding mandatory sanctions against challenging attorneys and mandatory recusal of judges who deny legislative continuances.

At the time, Jordan was appealing the denial of his third continuance request before the Louisiana Supreme Court, and he misleadingly informed his colleagues that his bill merely “clarifies legislative continuances that we have had … since 1836 — nothing new.” The House passed the bill, but the Senate refused to hear it.

Jordan was subsequently granted his continuance, albeit reluctantly. As Chief Justice John Weimer noted, “Every right can be waived, and no right should be abused … just because one may have a right to do something does not mean it is the right thing to do.”

The current constitutional challenge involves Sen. Alan Seabaugh, R-Many, a defendant’s attorney in a 2019 motor vehicle case. Seabaugh informed opposing counsel in an email, “I commit to you that I will not (seek a legislative continuance)” of an agreed-upon 2023 trial date. Seabaugh later reneged, claiming he never waived his right, and if he did, the law does not state that a waiver is irrevocable.

One week after notice of the pending constitutional challenge, Seabaugh filed Senate Bill 185 in the 2024 session, no doubt hoping to discourage the plaintiff’s counsel from further continuance challenges by mandating awards of attorney fees and costs to legislators. The bill passed without opposition, but Gov. Jeff Landry vetoed it even though he does not, like me, oppose such continuances in general.

“Some legal proceedings warrant immediate relief, and judicial delay is not possible,” Landry wrote. “Attorneys advocating for their client in these unique cases should not have to do so under the threat of being sanctioned with attorney fees and court costs. Additionally, there is no oversight in Louisiana over legislative continuances.”

Well said, Governor!