Re: | Cleco Securitization II LLC: | ||
Constitutional Issues |
1 | See infra note 78. The degree of impairment necessary to meet the standards for relief under the Takings Clauses or Contract Clauses analysis set forth in this Opinion could be substantially in excess of what a Bondholder would consider material. See also infra note 31 (inquiry whether government interference with property requires compensation under the Federal Takings Clause is fact-sensitive analysis). Furthermore, as discussed below (see page 70), there is no assurance that any such award of compensation would be sufficient to pay the full amount of principal of and interest on the Bonds. |
| (1) | The state and the Legislature of Louisiana each pledge to and agree with bondholders, the owners of the energy transition property, and other financing parties that, until the financing costs and the energy transition bonds and any ancillary agreements have been paid and performed in full, the state and the Legislature of Louisiana shall not do any of the following: |
| (a) | Alter the provisions of this [Securitization Act] that authorize the commission to create an irrevocable contract right by the issuance of a financing order, to create energy transition property, and to make the energy transition charges imposed by a financing order irrevocable, binding, and nonbypassable charges. |
| (b) | Take or permit any action that impairs or would impair the value of energy transition property. |
| (c) | Take or permit any action that impairs or would impair the rights and remedies of the issuer, any other assignee, such bondholders or other financing parties, or the security for the energy transition bonds or ancillary agreements. |
| (d) | Except as provided for in this Section and except for adjustments under any true-up mechanism established by the commission, reduce, alter, or impair energy transition charges that are to be imposed, collected, and remitted for the benefit of the bondholders and other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related energy transition bonds have been paid and performed in full. |
| (2) | Nothing in this Subsection shall preclude limitation or alteration if and when full compensation is made by law for the full protection of the energy transition charges imposed, charged, and collected pursuant to a financing order and full protection of the holders of energy transition charges collected pursuant to a financing order and full protection of the holders of energy transition bonds and any assignee or financing party.2 |
2 | La. R.S. 45:1279(B). The concluding paragraph (B)(2) provision does not undermine the contractual nature of the Legislative Pledge as evaluated below. It merely acknowledges that the Legislative Pledge is not absolute and provides the terms upon which the States’s undertakings therein can be changed. See infra note 18. |
3 | Even absent this statutory language, the Transaction Documents should be regarded as including the terms of the Securitization Act. Franklin California Tax-Free Trust v. Comm. of Puerto Rico, 85 F. Supp. 3d 577, 604 (D. P.R. 2015) (“Franklin”), jurisdiction declined over appeal of district court’s order denying motions to dismiss Contract Clause and Takings Clause claims, and affirmed on other grounds, 805 F.3d 322, 333 (1st Cir. 2015), affirmed on other grounds, 579 U.S. 115, 136 S. Ct. 1938 (2016); see infra page 35. |
| • | The LPSC’s Powers |
| • | Irrevocability of the LPSC Pledge |
| • | Federal Takings Clause |
| • | Louisiana Takings Clause |
| • | Federal Contract Clause |
| • | Louisiana Contract Clause |
| • | Reserved Powers Doctrine |
| • | Jurisprudential Considerations and Injunctions |
| • | The Constitutional Claims on Direct Review |
| • | Conclusion: Reserved Powers Doctrine; Legislative Pledge; Takings Clauses; LPSC Pledge; Securitization Act |
4 | Entergy Louisiana, LLC v. LPSC, 2016-0424 (La. 2017), 221 So.3d 801, 804 (citations omitted) (“ELL”); Global Tel*Link, Inc. v. LPSC, 1997-0645 (La. 1998), 707 So.2d 28, 33 (citation omitted) (“Global Tel*Link”); accord Opelousas Trust Authority v. Cleco Corp., 2012-0622 (La. 2012), 105 So.3d 26, 36 (“Opelousas”). |
5 | The Daily Advertiser v. Trans-LA, 612 So.2d 7, 10 (La. 1993). |
6 | Eagle Water, Inc. v. LPSC, 947 So.2d 28, 32-33 (La. 2007); Global Tel*Link, 707 So.2d at 33; Bowie v. LPSC, 627 So.2d 164, 166 (La. 1993) (“Bowie”). |
7 | Global Tel*Link, 707 So.2d at 33 (citation omitted). |
8 | Bowie, 627 So.2d at 166. |
9 | Standard Oil Co. of Louisiana v. LPSC, 97 So. 859, 568 (La. 1923). |
10 | Opelousas, 105 So.3d at 38. |
11 | ELL, 221 So.3d at 805 (citations omitted); Global Tel*Link, 707 So.2d at 33-34 (citations omitted); Vacuum Track Carriers of Louisiana, Inc. v. LPSC, 2008-2340, 12 So.3d 932, 936 (La. 2009); Voicestream GSMI Operating Co., LLC v. LPSC, 943 So.2d 349, 358 (La. 2006) (“Voicestream”). See infra note 203. |
12 | Entergy Gulf States, Inc. v. LPSC, 1998-1235 (La. 1999), 730 So.2d 890, 897 (citations and internal quotation marks omitted); Charles Hopkins DBA Old River Water Company v. LPSC, 2010-0255 (La. 2010), 41 So.3d 479); Gordon v. Council of City of New Orleans, 9 So.3d 63, 72 (La. 2009); Voicestream, 943 So.2d at 362. |
13 | Dixie Elec. Membership Corp. v. LPSC, 441 So.2d 1208, 1210 (La. 1983); accord Voicestream; cf. infra note 194. |
14 | Id. (citations omitted). But see infra at notes 205-206 and 224-225. |
15 | Louisiana Power & Light Co. v. LPSC, 377 So.2d 1023, 1028 (La. 1979); see infra note 69. A plaintiff Bondholder challenging an alleged impairment of contract based upon an LPSC decision would need to allege that the LPSC acted in a legislative character and capacity, such as by issuing an order antithetical to the Financing Order and the LPSC Pledge, as opposed to making an error of a ministerial nature in carrying out its statutory obligations under the Securitization Act, such as a mathematical error in a true-up adjustment. |
16 | See supra notes 5-6, 8. |
17 | Daily Advertiser, 612 So.2d at 16 (quoting Black’s Law Dictionary). |
18 | La. R.S. 45:1273(C)(5). The Securitization Act further provides that nothing shall preclude limitation or alteration of the Financing Order if and when full compensation is made for the full protection of the energy transition charges imposed, charged, and collected pursuant to the Financing Order and the full protection of the holders of energy transition bonds and any assignee or financing party. The equivalent statement is made with respect to the Legislative Pledge. La. R.S. 45:1279(B)(2); see supra note 2. |
19 | See infra pages 26-27, 31-32, 39-40, and 63-69. |
20 | U.S. Const., Amend V. |
21 | Kelo v. City of New London, 545 U.S. 469, 472 n.1 (2005); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) (Webb’s); Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226, 240 (1897). |
22 | Sheetz v. County of El Dorado, California, 601 U.S. 267, 276-77 (2024); Stop the Beach Renourishment, Inc. v. Florida Dep’t. of Envtl Prot., 560 U.S. 702, 713-15 (2010) (plurality opinion). This breadth contrasts with the Contract Clauses, which are limited to restricting legislative power only. See infra note 69. |
23 | Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (“Monsanto”); Tahoe-Sierra Preservation Counsel, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 307 n.1 (2002). See James v. Campbell, 104 U.S. 356, 358 (1881) (patent rights); Eastern Enters. v. Apfel, 524 U.S. 498, 523-24 (1998) (plurality) (applying regulatory takings framework to financial obligation to fund health benefits); Armstrong v. United States, 364 U.S. 40, 44, 46 (1960) (materialman’s lien); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 596-602 (1935) (real estate lien protected); see also infra note 26. |
24 | Horne v. Dep’t of Agriculture, 576 U.S. 351, 357 (2015) (physical taking of fruit) (“Horne”); Sheetz v. County of El Dorado, California, 601 U.S. 267, 276-77 (2024). |
25 | Lafaye v. City of New Orleans, No. 20-41 (E.D. La. 03/09/2021), court slip op. at 15, 2021 WL 886118, overruled on other grounds, No. 21-30358, 35 F.4th 940 (5th Cir. 06/01/2022); see Phillips v. Washington Legal Foundation, 524 U.S. 156, 172 (1998) (under Texas law); Ballinger v. City of Oakland, 24 F.4th 1287, 1294 (9th Cir. 02/01/2022) (money can be the subject of a per se taking if it is a “specific, identifiable pool of money”), cert. denied, 142 S. Ct. 2777 (U.S. 2022). State law or existing rules or understandings about property rights, and not the United States Constitution, creates the protected property right. Tyler v. Hennepin County, Minnesota, 598 U.S. 631, 638 (2023); Monsanto, 467 U.S. at 1001; Webb’s, 449 U.S. at 161; Board of Regents v. Roth, 408 U.S. 564, 577 (1972). |
26 | Lynch v. United States, 292 U.S. 571, 577, 579 (1934) (In general, under the Fifth Amendment, “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States.”), abrogated on other grounds (due process) by Goldberg v. Kelly, 397 U.S. 254, 261-63 (1970); U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 19 n.16 (1977) (dicta); Monsanto, 467 U.S. at 1003; accord King v. United States, 159 Fed.Cl. 450, 463 (Fed. Cl. 04/08/2022). The Supreme Court has also held that legislation that terminates a property interest can be considered a taking for which compensation is due. Hodel v. Irving, 481 U.S. 704 (1987) (federal law escheating certain fractional interests in tribal property to an Indian tribe was a compensable taking, see infra note 52). See infra note 50; but see infra note 61. |
27 | Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224 (1986) (“Connolly”). |
28 | Id. at 223-24. |
29 | Horne, 576 U.S. at 364; Connolly, 475 U.S. at 224; Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978); Monsanto 467 U.S. at 1005. Federal Takings Clause cases can generally be divided into two distinct categories: physical takings, where the government physically occupies or takes title to private property, and regulatory takings, where the government regulates the use of private property. Yee v. City of Escondido, 503 U.S. 519, 522-23 (1992). The United States Supreme Court has identified two types of regulatory actions that constitute per se regulatory taking that create a categorical obligation for the government to compensate a property owner: regulations that involve a permanent physical invasion of property and regulations that permanently deprive the owner of all economically beneficial use of the property. Lingle v. Chevron USA, Inc., 544 U.S. 528, 538 (2005). (Louisiana follows the same analysis under the Louisiana Constitution. See Robert v. State, 327 So.3d 546, 560-63 (La. App. 4th Cir. 2021).) Outside of this latter type of regulatory takings, which does not require complex analysis to warrant compensation, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992), the third type of other regulatory action requires the ad hoc factual inquiry noted in the text. See infra note 39. Horne emphasizes the different treatment of precedents for physical taking versus regulatory taking, Horne, 576 U.S. at 361. The Supreme Court further has recognized an exception to the requirement of compensation when a taking by the government is necessitated by an imminent emergency requiring immediate government action, even when the economic impact is severe. “[H]istorically oriented legal scholarship has widely converged on the thesis that a ‘necessity’ or ‘emergency’ privilege has existed in Takings Clause jurisprudence since the Founding.” Baker v. City of McKinney, Texas, 84 F.4th 378, 385 (5th Cir. 2023) (no compensation required for severely damaged and destroyed property when it was objectively necessary for law enforcement officers to damage and destroy that property in an active emergency to prevent imminent harm to persons that began as a hostage situation involving a child and evolved into a potential shootout in a residential neighborhood with a heavily armed fugitive). The emergency exception to the just compensation requirement of the Federal Takings Clause appears in several Supreme Court decisions involving the government's activities during military hostilities. United States v. Caltex (Philippines), Inc., 344 U.S. 149, 154 (1952) (relying, in part, on the common law, which had “long recognized that in time of imminent peril - such as when fire threatened a whole community - the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved,” the court found no taking when the U.S. military destroyed private oil facilities in the Philippines to prevent the Japanese from taking control of the facilities during World War II; Nat’l Bd. of Young Men's Christian Ass'ns v. United States, 395 U.S. 85 (1969) (no compensable taking where private property destroyed by rioters when U.S. troops take shelter there in the course of battle); United States v. Cent. Eureka Mining Co., 357 U.S. 155 (1958) (no compensable taking when government forced gold mines to cease operations to conserve mining resources for war effort); United States v. Pacific Railroad, 120 U.S. 227 (1887) (no compensation required due to exigencies of war when the military destroyed private bridges to prevent the advance of the enemy); American Mfrs. Mut. Ins. Co. v. United States, 453 F.2d 1380, 1381 (Ct. Cl. 1972) (compensation not required when private vessel was “destroyed as part of the fortunes of war and by actual and necessary military operations in attacking and defending against enemy forces”). Compare United States v. Pewee Coal Co., 341 U.S. 114 (1951) (plurality opinion) (compensable taking when occupation is physical rather than regulatory, emergency notwithstanding). The emergency exception is not limited to wartime activities, however. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981) (no compensable taking resulting from President’s executive order nullifying attachments on Iranian assets and permitting those assets to be transferred out of the country); Miller v. Schoene, 276 U.S. 272 (1928) (no due process violation where trees destroyed to prevent disease from spreading to other trees); Bowditch v. Boston, 101 U.S. 16, 18-19 (1879) (discussing common law and natural law supporting government immunity for destroying property to prevent imminent fueling of an ongoing fire). The emergency exception is not limited to the physical destruction of property by the government, see Cent. Eureka Mining, 357 U.S. at 168, but the Supreme Court did not mention the exception in finding a taking by wartime physical occupation of property, see Pewee, 341 U.S. at 116-17 (plurality opinion), which constitutes a per se taking. Arguably a permanent appropriation of property by the government would be generally inconsistent with the concept of an “emergency” in this context. See Cent. Eureka Mining, 357 U.S. at 168 (describing wartime restrictions as “temporary in character”). Compare infra note 235 (impairment of contracts due to emergencies). |
30 | Connolly, 475 U.S. at 225. “In discerning whether a taking has occurred, the first two factors are the main determinants,” and “the third ‘may be relevant.’” Heights Apartments, LLC v. Walz, 30 F.4th 720, 734 (8th Cir. 04/05/2022), rehearing en banc denied, 39 F.4th 479 (quoting Lingle v. Chevron USA, Inc., 544 U.S. 528, 538-39 (2005)). |
31 | Penn Coal Co. v. Mahon, 260 U.S. 393, 413 (1922); Loveladies Harbor, Inc. v. U.S., 28 F.3d 1171, 1176-77 (Fed. Cir. 1994) (“Loveladies”), abrogated on other grounds by Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360, 1369-70 (Fed Cir. 2004). The question of whether a given governmental action has resulted in a compensable taking under the Louisiana Constitution also is inherently a fact-specific inquiry. City Bar, Inc. v. Edwards, 349 So.3d 22, 32 n.2 and 33 (La. App. 1 Cir. 08/20/2022) (“City Bar”), writ denied, 350 So.3d 498 (La. 2022). |
32 | Armstrong v. U.S., 364 U.S. 40, 48 (1960); Yee, supra note 29, 503 U.S. at 522-23. Compare City Bar at 30 n.1. |
33 | Loveladies, 28 F.3d at 1177. Accord 74 Pinehurst LLC v. State of New York, 59 F.4th 557, 567 (2d Cir. 02/06/2023), cert. denied, ___ S. Ct. ___, 218 L. Ed. 2d 66, 2024 WL 674658 (02/20/2024); Anaheim Gardens, L.P. v. United States, 953 F.3d 1344, 1349-51 (Fed. Cir. 2020) (where sophisticated investor voluntarily bought property after challenged legislation enacted, the “complete lack of investment-back expectations overwhelmingly outweighs” the other Penn Central factors). Compare infra notes 80 and 116 (reasonable reliance in Federal Contract Clause claims). But cf. Palm Beach Isles Associates v. U.S., 231 F.3d 1354, 1364 (Fed. Cir. 2000) (clarifying Loveladies dictum by holding that in a categorical regulatory taking, in which all economically viable use and economic value has been taken by the regulatory imposition, the property owner is entitled to recovery without regard to consideration of investment-backed expectations. In such a case, “reasonable investment-backed expectations” are not a proper part of the analysis, just as they are not in a physical takings case). See also Avenal v. U.S., 100 F.3d 933 (Fed. Cir. 1996) (holders of oyster bed leases, which are “property,” did not have reasonable investment-backed expectations so as to be entitled to compensation due to the impact of a government freshwater diversion project, because they knew when they acquired the leases that their property rights were subject to inevitable changes that the long-anticipated project would bring about). |
34 | Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493 (1987). |
35 | Monsanto, 467 U.S. at 1005 (quoting Webb’s, 449 U.S. at 161); accord Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262 (5th Cir. 2012) (“Melancon”) (rejecting takings claim based on unilateral expectation that highly regulated framework of taxicab licensing would not be changed). |
36 | Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16 (1976). |
37 | Connolly, 475 U.S. at 224. |
38 | Chang v. U.S., 859 F.2d 893, 897 (Fed Cir. 1988). See Nekrilov v. City of Jersey City, 45 F.4th 662, 674-77 (3d Cir. 2022) (discussing argument that where the government itself affirmatively engenders the property owner’s investment-backed expectation and two decisions [Monsanto and Kaiser Aetna v. U.S., 444 U.S. 164 (1979)] involving explicit promises the state made to property owners) and State v. Perez Enterprises, LLC, No. S-1-SC-38510, 2021-NMSC-022, 489 P.3d 925 (N.M. 06/07/2021) (state’s emergency public health orders limiting and closing businesses due to COVID-19 pandemic do not support a regulatory takings compensation claim because such orders are reasonable exercise of the police power). |
39 | Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360, 1370 (Fed. Cir. 2004). See South Grande View Dev. Co. v. City of Alabaster, Alabama, 1 F.4th 1299, 1311 (11th Cir. 2021) (the “character of the government action” factor is another way to examine the severity of the government interference with property rights in a Federal Takings Clause claims); see also Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002) (cases involving regulatory takings necessarily entail that courts conduct complex factual assessments of the “purposes and economic effects of government actions”); Yee, 503 U.S. at 522-23; Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 484 (1987). |
40 | Connolly, 475 U.S. at 225. |
41 | Connolly, 475 U.S. at 226. |
42 | Id. |
43 | Connolly, 475 U.S. at 226-27. |
44 | Id. at 226. |
45 | Id. at 227. |
46 | Id. Because many factors could have an impact on the market price of the Bonds, maintenance of the market price of the Bonds might be considered a unilateral expectation of the Bondholders and not a reasonable investment-back expectation. |
47 | Id. (internal quotation marks and citations omitted); accord Melancon, 703 F.3d at 272-75. Nonetheless, the “fact that a property interest arises in a highly regulated environment does not per se render that property interest incognizable under the fifth amendment.” King v. United States, 159 Fed.Cl. 450, 476 (Fed. Cl. 04/08/2022). |
48 | Connolly, 475 U.S. at 225. |
49 | Id. (citations omitted). |
50 | See supra note 26 and infra notes 148 and 172; Melendez v. City of New York, 16 F.4th 992, 1020 n.45 (2d Cir. 10/28/2021) (recognition of some overlap in the protections afforded to private contracts by the Takings Clause and Contract Clause may explain how compensation came to figure in a subsequent balancing approach to Contract Clause). But see infra note 61. |
51 | 459 U.S. 70, 75-76 (1982). |
52 | U.S. v. Sec. Indus. Bank, 459 U.S. at 412 (citation omitted). See Hodel v. Irving, 481 U.S. 704 (1987) (federal statute escheating certain fractional interests in tribal property to an Indian tribe was a compensable taking, as total abrogation of a property right. See supra note 26.) |
53 | U.S. v. Sec. Indus. Bank. The U.S. Constitution is concerned with the means used as well as the ends. Horne, 576 U.S. at 362. |
54 | La. Const. Art. I, Sec. 4. See infra note 213. |
55 | State, Through DOTD v. Chambers Investment Co., Inc., 595 So.2d 598, 602 (La. 1992) (“Chambers”); Watson Memorial Spiritual Temple of Christ v. Korban, 2024-C-00055 (La. 06/28/2024), 387 So.3d 449, 513; Crooks v. State, 343 So.3d 248, 262-63 (La. App. 3d Cir. 2022), writ denied, 349 So.3d 2 (La. 2022); Tucker v. Parish of St. Bernard, 2010 WL 3283093 (E.D. La. 8/7/2010); City Bar, supra note 31, at 30; cf. DeVillier v. Texas, 601 U.S. 285, 144 S. Ct. 938 (2024) (contrasting unanswered question whether Federal Takings Clause provides an implied direct cause of action for just compensation with Texas State law inverse condemnation cause of action against the State based both on Federal Takings Clause and Texas Takings Clause). |
56 | Chambers, 595 So.2d at 602. |
57 | Chambers, 595 So.2d at 602; City Bar at 30. |
58 | Avenal v. State of Louisiana through DNR, 2003-3521 (La. 2004), 886 So.2d 1085, 1104 (citations omitted) (“Avenal”), cert. denied, 544 U.S. 1049 (2005). Accord City Bar at 31. Regarding the first prong, the Securitization Act states that energy transition property is an existing present, individualized property right under state law. La. R.S. 45:1272(10), 1274(A) and (E), and 1275(3). |
59 | See Avenal, 886 So.2d at 1106, 1107 (coastal restoration project did not constitute compensable damaging of leases of oyster fishermen where, inter alia, leases did not guarantee commercial viability, and restoration project did not completely and permanently destroy economic value of leases); see also Annison v. Hoover, 517 So.2d 420, 432 (La. App. 1 Cir. 1987) (“We hold that a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value.”) (citations omitted); writ denied, 519 So.2d 148 (La. 1988). |
60 | See, e.g., Louisiana Power & Light Co. v. LPSC, 343 So.2d 1040, 1043 (La. 1977) (order inhibiting duplicative utility facilities was a reasonable exercise of LPSC’s constitutional jurisdiction, and therefore not a compensable taking); Belle Co. LLC v. State of Louisiana through DEQ, 2008-2382 (La. App. 1 Cir. 2009), 25 So.3d 847, writ denied, 18 So.3d 1288 and 1291 (La. 2009). |
61 | See Avenal, 886 So.2d at 1107 n.28 (discussing Federal Takings Clause analysis) and supra note 38 (discussing where government affirmatively engenders the investment-based expectations). Although the factors set forth in Chambers under the Louisiana Takings Clause do not expressly include that Connolly factor, we believe it would be considered in the analysis. See supra note 59. Compare Urban Developers LLC v. City of Jackson, 468 F.3d 281, 303 (5th Cir. 2006) (“It is an unsettled question, of course, the extent to which many jurisdictions will recognize as protected by the Takings Clause a property right in contract”) and Brandmeyer v. Regents of the Univ. of California, No. 20-cv-02886-SK, 2020 WL 6816788, at *6 (N.D. Cal. 11/10/2020) (plaintiffs’ attempt to disguise their breach of contract claim as a takings violation is unavailing) with Franklin, supra note 3, 85 F. Supp. 3d 577, 611 (“contracts are a form of property for purposes of the [Federal] Takings Clause”); see also supra notes 26 and 50. |
62 | U.S. Const. Art. I, Sec. X, Cl. 1. The United States Supreme Court has referred to this constitutional provision both as the “Contract Clause,” see, e.g., United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 14 (1977), and more recently as the “Contracts Clause”, see, e.g., Sveen v. Melin, 138 S. Ct. 1815, 1821 (2018); see also Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. 504, 139 S. Ct. 2449, 2463 (2019). In this Opinion, we employ the former more traditional appellation, except when quoted text does otherwise. |
63 | Sveen v. Melin, 138 S. Ct. 1815, 1822 n.3, 201 L. Ed. 2d 180 (2018), infra note 66; Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410 (1983); see Borman, LLC v. 18718 Borman LLC, 777 F.3d 816, 825-26 (6th Cir. 2015) (applying Energy Reserves framework to debt contracts, in the same manner as other contracts, with no additional constitutional protection to debt contracts, and noting the Supreme Court flatly rejects that public purpose here is limited to crises or emergency or temporary situations, and further noting an impairment takes on constitutional dimensions only when it interferes with reasonably expected contractual benefits). See also Segura v. Frank, 630 So.2d 714, 728 (La. 1994) and infra notes 96, 111, 119, and 235; compare supra note 29 (emergency exception to Federal Takings Clause). |
64 | United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 21, 25 (1977) (“U.S. Trust”) (“As with laws impairing the obligations of private contracts, an impairment [of a state contract] may be constitutional if it is reasonable and necessary to serve an important public purpose.”) See infra notes 83 and 101. The United States Supreme Court has recently declined to address the contention that the modern test departs from the Federal Contract Clause’s original meaning and earliest applications. Sveen, infra note 66, 584 U.S. at 1822 n.3. |
65 | See infra notes 67, 100, 108, 109, 111, and 172. Of course, the Bonds themselves are not a debt or general obligation of the State of Louisiana or any of its political entities and are not a charge on their full faith and credit. La. R.S. 45:1271(B) and 1278. See pages 24 and 65. |
66 | Sveen v. Melin, 138 S. Ct. 1815, 1821-22, 201 L. Ed. 2d 180 (2018) (“Sveen”). See infra notes 85 and 99. |
67 | For purposes of Federal Contract Clause analysis, the question whether a contract was made is a federal question. General Motors Corp. v. Romein, 503 U.S. 181, 187 (1992). Clearly the Transaction includes private parties’ contracts between the Bondholders and the Issuer that could be impaired, even if the Pledges themselves were found not to be contracts of the State. But while in theory an impairment of the Energy Transition Property could be successfully challenged (albeit potentially under a more difficult to overcome standard of review, see infra note 100) even if the Pledges are not contracts binding on the State, we believe that a finding that the Pledges are not valid and binding contractual obligations under the reserved powers doctrine likely also would be fatal to a Contract Clauses claim on the Transaction’s purely private contracts. See infra pages 26-27, 31-32, 39-40, and 63-69. |
68 | National R.R. Passenger Corp. v. Atchison, Topeka & Sante Fe Ry Co., 470 U.S. 451, 466 (1985) (“National R.R.”) (citation omitted); see also General Motors Corp. v. Romein, 503 U.S. 181, 187-89 (1992). |
69 | New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 371 (see infra note 136); Louisville & Nashville R.R. Co. v. Garrett, 231 U.S. 298, 305, 318 (1913) (order of railroad commission fixing rates is a law passed by the state, within the meaning of the Federal Contract Clause); Louisiana Power & Light Co. v. LPSC, 377 So.2d 1023, 1028 (La. 1979); Louisiana Gas Service v. LPSC, 162 So.2d 555, 563 (La. 1964); United Gas Pipe Line Co. v. LPSC, 130 So.2d 652, 657 (La. 1961); see Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 960 (9th Cir. 2010) (discussing four factors used in determining whether an act is legislative in its character and effect); cf. New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U.S. 18, 30 (1888) (“[N]ot only must the obligation of a contract have been impaired, but it must have been impaired by a law of the state. The prohibition is aimed at the legislative power of the state, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.”); accord Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451 (1924) (emphasis deleted); supra notes 15 and 22 and infra notes 135, 172, and 179. |
70 | Dodge v. Board of Educ., 302 U.S. 74, 78 (1937). |
71 | Infra at note 101. |
72 | United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 18 (1977) (emphasis added). The issue of the existence of a contract between the two states and the bondholders was not disputed on appeal, but the Supreme Court expressly reviewed the language itself and the surrounding circumstances and concluded there was no doubt the covenant was properly characterized as a contractual obligation of the two states to secure the marketability of those bonds. It could be contended that the factual situation in U.S. Trust is distinguishable from the facts involved in the issuance of the energy transition bonds. In U.S. Trust the bonds were issued and payable by a governmental agency for its own benefit, while these Bonds are for the benefit of the private Utility (albeit for a public purpose), are not public debt, and are payable by the Utility’s ratepayers. However, the authority to issue the energy transition bonds is completely dependent under the Securitization Act upon the LPSC issuing an order, and thus the issuance of the energy transition bonds is fully state-sanctioned in a manner closely analogous to the situation in U.S. Trust. See infra notes 242-243. |
73 | National R.R., 470 U.S. at 470. Similarly, in Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 104-05 (1938), the United States Supreme Court determined in a materially different context that the Indiana Teachers’ Tenure Act created a contract between the state and specified teachers because the statutory language demonstrated a clear legislative intent to contract. The Supreme Court based its decision, in part, on the legislature’s use of the word “contract” throughout the statute to describe the legal relationship between the state and such teachers. See also Elliot v. Board of Sch. Teachers of Madison Consol. Schs., 876 F.3d 926 (7th Cir. 2017) (overturning law impairing statutory tenure entitlements). |
74 | National R.R., 470 U.S. at 456, 467, 469. |
75 | National R.R., 470 U.S. at 469. The mere use of the word “contract” in a statute, without more, will not necessarily evince the requisite legislative intent. As the Court cautioned in National R.R., the use of the word “contract” alone would not signify the existence of a contract with the government. Id. at 470. In National R.R., the Court found that use of the word “contract” in the Rail Passenger Service Act defined only the relationship between the newly-created nongovernmental corporation (Amtrak) and the railroads, not the relationship between the United States and the railroads. The Court determined that “[l]egislation outlining the terms on which private parties may execute contracts does not on its own constitute a statutory contract.” Id. at 467. |
76 | The definition of the Legislature’s term -- “pledge” -- is “to bind by a solemn promise.” CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 914 (8th ed. 1990). Melancon, 703 F.3d at 275-77 (contrasting United States Supreme Court findings of statutory language demonstrating an intent to extend an offer of a contractual nature); Franklin, supra note 3, 85 F. Supp. 3d 577, 604. |
77 | Supra pages 5-7. Furthermore, the LPSC uses the word “covenant” multiple times in the quoted LPSC Pledge in the Financing Order, as did the statutory language in U.S. Trust. |
78 | See supra note 1. This determination likely would depend on the nature of the legislative action, particularly the extent to which it is directed at the Issuer and the obligations subject to the Legislative Pledge and the LPSC Pledge, the extent to which it is squarely inconsistent with those pledges, and the anticipated practical effect upon performance consistent with those pledges. We note, however, that in U.S. Trust, supra note 64 and infra note 101, the United States Supreme Court found a substantial impairment where the States of New York and New Jersey repealed outright an “important security provision” securing repayment of bonds without any form of compensation to the bondholders, even in the absence of a finding of the extent of financial loss suffered by the bondholders as a result of the repeal. The effect of the repeal of the covenant limiting subsidies of mass transit was difficult to quantify because the bonds recovered much of their market price following an initial decline in value and retained an “A” rating. 431 U.S. 1, 18-19 (1977). See infra notes 102-103 See also Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 429-35 (1934). Soon after U.S. Trust was decided, the New York Court of Appeals relied upon the decision to apply the Contract Clause to invalidate a state statute revoking an authorized toll increase and imposing a new restrictive procedure for toll increases because New York had enacted a statutory pledge not to interfere with authorized toll increases and not to limit or alter the rights vested in the authority to the detriment of bondholders. Patterson v. Carey, 363 N.E. 2d 1146, 1152-53 (1977). In Patterson, the tolls were the sole source of revenue for repayment of the bonds issued to finance the highway, similar to the Energy Transition Charges’ role in repayment of the Bonds. Id. at 1150-51. In Board of Comm’rs v. Department of Natural Resources, 496 So.2d 281, 294-95 (La. 1986), the Louisiana Supreme Court found a state law did not operate as a substantial impairment of government bonds where there was no modification of a contractual right, a remedy or a security device, no showing of any danger of a default upon the bonds, no decline in the value of the bonds in the market, and no showing that the legislative act took from the bonds the quality of an acceptable investment for a rational investor. In State ex rel. Porterie v. Walmsley, 162 So. 826 (La. 1935), the Louisiana Supreme Court also found a statute changing the membership of a board did not impair the contract rights of bondholders because the statute did not disturb the mode of payment of both principal and interest on bonds issued by that board and thus did not impair the means, which at the time of their creation, the law afforded for their enforcement. Cf. Baptiste v. Kennealy, 490 F. Supp. 3d 353 (D. Mass. 2020) (not possible to determine conclusively the extent of the impairment because not clear when the COVID-19 temporary moratorium on residential evictions will end). |
79 | Sveen, 138 S. Ct. at 1822 (citations omitted). Sveen stopped its analysis at step one because it found the statute at issue did not substantially impair pre-existing contractual arrangements. “Not every statute which affects the value of a contract … impair[s] its obligation.” Id. at 1824 (citation omitted). |
80 | City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 392 (4th Cir. 1995). See Sveen, 138 S. Ct. at 1823 (insured cannot reasonably rely on a beneficiary designation remaining in place after a divorce). Compare supra note 33 (reasonable reliance in Federal Takings Clause cases). |
81 | American Express Travel Related Services Inc. v. Sidomen-Eristoff, 669 F.3d 359, 369 (3d Cir. 2012); see Lipscomb v. Columbus Municipal Separate School District, 269 F.3d 494, 510 (5th Cir. 2001); see also Veix v. Sixth Ward Bldg & Loan Ass’n, 310 U.S. 32 (1940) (relying on fact that savings and loan associations had been subject to continuous statutory regulation from the outset of the industry); infra note 96; c.f. supra note 33 and infra notes 80 and 116. |
82 | City of Charleston, supra note 80, at 392-94. |
83 | United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 19 (1977); supra note 64 and infra note 101. See also City of Shreveport v. Cole, 129 U.S. 36, 9 S. Ct. 210, 2 L. Ed. 589 (1889); Ralls County Court v. United States, 105 U.S. 733, 26 L. Ed. 1220 (1881). |
84 | See infra pages 39-40 and pages 63-69. |
85 | Sveen, 138 S. Ct. at 1822; Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244; U.S. Trust, 431 U.S. at 22; see supra note 66 and infra note 99. In Melendez v. City of New York, 16 F.4th 992, 1031 n.62 (2d Cir. 10/28/2021), the court noted that the opinions in U.S. Trust and Energy Reserves, infra note 90, both appear to use “appropriate” and “necessary” interchangeably to identify the relevant standard of review, and thus assumed Sveen did not pronounce any different standard of review by using “appropriate” from that identified in U.S. Trust and Allied Structural. |
86 | Home Bldg & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) (citations omitted) (“Blaisdell”). U.S. Trust, 431 U.S. at 15; see also HAPCO v. City of Philadelphia, 482 F. Supp. 3d 337, 350 (E.D. Pa. 2020) (continuing to so refer to Blaisdell). |
87 | The mortgagor was required to continue to pay the reasonable income or rental value of the property, as determined by the court, toward payment of taxes, insurance, interest and principal. The law stated that it was to remain in effect only during the current emergency and no later than May 1, 1935; no redemption period could be extended beyond the expiration of the law. Blaisdell, 290 U.S. at 415-18. |
88 | Blaisdell, 290 U.S. at 439-40. |
89 | Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 242 (1978); Blaisdell, 290 U.S. at 444-45; Melendez v. City of New York, 16 F.4th 992, 1023-24, 1038-40 (2d Cir. 10/28/2021) (“Melendez”) (challenged law not temporary). |
90 | Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983) (“Energy Reserves”); see infra note 235. |
91 | Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 250 (1978). Compare Heights Apartments, LLC v. Walz, 30 F.4th 720, 729 n.8 (8th Cir. 04/05/2021), rehearing en banc denied, 2022 U.S. App. LEXIS 16863 (reversing dismissal of Contract Clause challenge to eviction moratorium executive orders response to COVID-19 pandemic; finding Ninth Circuit’s decision in Apt. Ass’n of L.A. County “unpersuasive”) and Melendez, supra note 89, 16 F.4th at 1040 n.70 (2d Cir. 10/28/2021) (reversing dismissal of Contract Clause challenge to lease guaranty relief law response to COVID-19 pandemic), with Apt. Ass’n of L.A. County v. City of Los Angeles, 10 F.4th 905 (9th Cir. 8/25/2021) (“Los Angeles”), cert. denied, 142 S. Ct. 1699 (2022) (upholding district court ruling that plaintiff had not shown the required likelihood of success on the merits to obtain a preliminary injunction because eviction moratorium is likely a reasonable response to the problems identified by local officials in COVID-19 pandemic). See also discussion infra at note 235. |
92 | Blaisdell, 290 U.S. at 444. Compare Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1099 (9th Cir. 2003) (holding in the wake of the Northridge Earthquake that “[p]rotecting the rights of victims” was a “significant and legitimate public purpose”); Vesta Fire Ins. Corp. v. Florida, 141 F.3d 1427, 1434 (11th Cir. 1998) (holding in the wake of Hurricane Andrew that “protection and stabilization of the Florida economy, particularly the real estate market,” was a “significant and legitimate public purpose”), abrogated on other grounds by South Grande View Dev. Co. v. City of Alabaster, Alabama, 1 F.4th 1299, 1310-12 (11th Cir. 2021); State v. All Prop. & Cas. Ins. Carriers Authorized & Licensed To Do Bus. In State, 937 So.2d 313, 326 (La. 2006) (holding in the wake of Hurricanes Katrina and Rita that “legislative extension of the prescriptive period for damage claims is based upon a significant and legitimate public purpose”) (see infra note 125); cf Welch v. Brown 551 F. App’x 804, 811 (6th Cir. 2014) (agreeing with cases that “addressing a fiscal emergency is a legitimate public purpose”). See also discussion infra at note 235. In several cases contemporaneous with Blaisdell, the United States Supreme Court struck down other laws lacking one or more of Blaisdell’s five factors passed in response to the economic emergency created by the Great Depression, thus reinforcing the notion that, to be justified, the impairment must be the result of a reasonable, necessary and tailored response to a broad and significant public concern, and that an evident and more moderate course would not serve the government’s purposes equally well. See Treigle v. Acme Homestead Ass’n, 297 U.S. 189 (1936); W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935); W. B. Worthen Co. v. Thomas, 292 U.S. 42 (1934); see also Baptiste v. Kennealy, 490 F. Supp. 3d 353 (D. Mass. 2020), supra note 78 (denying a preliminary injunction, finding that plaintiffs were unlikely to prove that a temporary moratorium on residential evictions was not a reasonable and appropriate response to significant and legitimate public purpose of the growing threat of COVID-19 pandemic), and supra notes 235-236. The tailoring of the response must be reasonable, not necessarily narrow. Heights Apartments, LLC v. Walz, 30 F.4th 720, 731 (8th Cir. 04/05/2022). |
93 | Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) (“Allied Structural”). |
94 | Id. at 249. |
95 | Energy Reserves, 459 U.S. at 416-17. The United States Supreme Court has upheld state statutes which were aimed at protecting the public at large: protecting homeowners from loss of their homes via foreclosure, Blaisdell; providing for the general welfare of citizens by the reclamation of overflowed infertile lands and the erection of dams, levees and dikes for that purpose, Manigault v. Springs, 199 U.S. 473 (1905); preserving fresh water, Hudson Valley Water Company v. McCarter, 209 U.S. 349 (1908); protecting employee pensioners, Allied Structural; and protecting insurance policyholders, Sveen. |
96 | Emergency does not create power and does not increase granted power, but mitigation of economic emergencies is recognized in controlling precedent as a public purpose that can support contract impairment. Melendez, 16 F.4th at 1022-23, 1036-37. Nonetheless it is clear that the United States Supreme Court has flatly rejected the argument that such public purpose need be addressed only to an emergency or temporary situation. Energy Reserves, 459 U.S. at 412 (“Furthermore, since [Blaisdell], the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation.”); Borman, LLC v. 18718 Borman LLC, 777 F.3d 816, 825 (6th Cir. 2015); Los Angeles, 10 F.4th at 916; see supra note 63. Decisions after Blaisdell affirmed state legislation of a non-emergency nature modifying private contractual rights based upon proof of a public purpose and the legislative amendment being responsive to that purpose, but on occasion struck down as unconstitutional state laws with a disproportionate adverse effect on creditors. Veix v. Sixth Ward Bldg. & Loan Ass’n, supra note 81, is notable because it upheld a non-emergency statutory revision of the right to redeem savings and loan ownership shares. 310 U.S. 32 (1940). The Court relied upon older authority, which affirmed statutes providing for modification of utility contract rates, and the fact that savings and loan associations had been subject to continuous statutory regulation from the outset of the industry, indicating a heightened role for legislative action and a lower expectation of absolute freedom of contract. None of these decisions addressed an express covenant with the state itself such as is presented by the Pledges. See infra discussion at note 235. |
97 | Blaisdell, 290 U.S. at 445. |
98 | Allied Structural, 438 U.S. at 250. The United States Supreme Court later emphasized its recognition that the invalidated law may even have been directed at only one particular employer. Energy Reserves, 459 U.S. at 412 n.13. See also United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 631 (5th Cir. (La.) 2010) (holding Louisiana statute invalid under the Federal Contract Clause as economic protectionism; statute narrowly focused on benefitting specific in-state company and was not a broad exercise of the State’s police power). Compare, e.g., Los Angeles, 10 F.4th at 914 (eviction moratorium’s elements are reasonable attempts to address COVID-19 pandemic broadly). |
99 | Energy Reserves, 459 U.S. at 413 (internal quotation marks and citation omitted). See supra notes 66 and 85. |
100 | National R.R., 470 U.S. at 471 n.24 (emphasis added); see supra notes 65 and 67 and infra notes 108, 109, 111, 131, 172, and 194. |
101 | United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) (“U.S. Trust”); supra notes 64, 71-72 and 83. |
102 | U.S. Trust, 431 U.S. at 9-12. See supra note 78. |
103 | Id. at 12-14. |
104 | Id. at 21 (internal quotation marks and citations omitted). |
105 | Id. at 23 (citations omitted); see pages 39-40 and pages 63-69. |
106 | U.S. Trust, 431 U.S. at 24-25 (“Whatever the propriety of a State’s binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned.”). |
107 | U.S. Trust, 431 U.S. at 25. |
108 | Id. at 26. See infra note 111. See discussion of the general principle of U.S. Trust and Allied Structural as applicable to private, as well as public, contracts in Melendez, 16 F.4th at 1018 n.43, 1021 n.46, and 1027-29. |
109 | U.S. Trust, 431 U.S. at 29-31. The Supreme Court noted that although when the bills to repeal the covenant were pending “a national energy crisis was developing,” the need for mass transportation was “not a new development and the likelihood that publicly owned commuter railroads would produce substantial deficits was well known” when the covenant was adopted. Id. at 13-14, 31-32. An impairment is not a reasonable one if the problem sought to be resolved by the impairment of the contract existed at the time the contractual obligation was incurred. Univ. of Hawaii Prof’l Assembly v. Cayetano, 183 F.3d 1096, 1107 (9th Cir. 1999). Compare Faitoute Iron & Steel Co. v. City of Ashbury Park, 316 U.S. 502 (1942) (In the context of a municipal insolvency during the Great Depression, a state has the right to use its police power to create a reasonable process for the payment of unsecured municipal debts, and as part of the exercise of that power, a state can modify the term for the payment of those debts without violating constitutional prohibition against contract impairment). In U.S. Trust, the Supreme Court noted that the “only time in this century that alteration of a municipal bond contract has been sustained by this Court” was in Faitoute Iron. U.S. Trust, 431 U.S. at 27. In Energy Reserves, the Supreme Court noted that in “almost every case” the Supreme Court “has held a governmental unit to its contractual obligation when it enters financial or other markets.” Energy Reserves, 459 U.S. at 412, n.14. |
110 | U.S. Trust, 431 U.S. at 31. |
111 | Energy Reserves, 459 U.S. at 412, 413 n.14; Allied Structural, 438 U.S. at 244 n.15; supra notes 65, 67, 100, 108, and 109 and infra notes 131, 172, and 194; United Steel Paper & Forestry Rubber Mfg. v. Virgin Islands, 842 F.3d 201, 212 (3d Cir. 2016) (“when a State is a contracting party, its ‘legislative judgment is subject to stricter scrutiny than when the legislation affects only private contracts’”) (citation omitted); United Auto., Aerospace, Agricultural Implement Workers of Am. Int’l Union v. Fortuño, 633 F.3d 37, 43 (1st Cir. 2011); United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 627 at n.6 (5th Cir. (La.) 2010). Compare Buffalo Teachers Federation v. Tobe, 464 F.3d 362, 369-71 (2d Cir. 2006) (expressly not deciding whether the higher standard is warranted when a subsidiary of the state rather than the state itself is the contract counterparty, and noting that this so-called stricter or “heightened scrutiny” is not as exacting as that commonly understood as strict scrutiny; the court held it was not necessary to determine what level of deference to apply because the challenged action was reasonable and necessary even under the less deferential standard). Compare note 131. But see supra notes 65 and 100, noting that in the later case of National R.R. the Supreme Court concluded that no alleged impairment by the Government of its own contract existed and therefore there was “no need to consider whether an allegation of a government breach of its own contract warrants application” of a more rigorous standard of review, and suggested only that the Government’s impairment of its own obligations “perhaps” should be treated differently. 470 U.S. at 471 and n.24 (emphasis added); see also infra notes 172 and 194 and the dissent in U.S. Trust, which noted the absence of prior authority adopting this rational. U.S. Trust, 431 U.S. at 59 (Brennan, J., dissenting); accord JAMES W. ELY, JR., THE CONTRACT CLAUSE, A CONSTITUTIONAL HISTORY 7-29 (page 222), University Press of Kansas 2016. |
112 | 518 U.S. 839 (1996). (“Winstar”). |
113 | Id. at 856. |
114 | Id. at 903. |
115 | City of Charleston, 57 F.3d at 392-393 (citations omitted). Accord BellSouth Telecommunications, LLC v. City of New Orleans, 31 F. Supp. 3d 819 (E.D. La. 2014) (the City has no authority to unilaterally increase amount utility owes under irrevocable franchise contract for the use of rights-of-way). |
116 | In discussing the earlier case of El Paso v. Simmons, 379 U.S. 497 (1965), which held that a law shortening the time within which a defaulted land claim could be reinstated did not violate the Federal Contract Clause, the Allied Structural opinion highlighted that the basis for the El Paso holding was the United States Supreme Court’s quoted conclusion that “[w]e do not believe that it can seriously be contended that the buyer was substantially induced to enter into these contracts on the basis” of the altered law. 438 U.S. at 244 n.14. In Board of Comm’rs v. Department of Natural Resources, 496 So.2d 281, 294 (La. 1986), the Louisiana Supreme Court doubted the right of a successor bondholder, who purchased the bonds after and with full knowledge of the allegedly impairing legislative enactment, to have a cause of action for impairment. See supra notes 33, 78, 80, and 82. |
117 | La. Const. Art. I, Sec. 23. |
118 | Smith v. Board of Trustees, 851 So.2d 1100, 1108 (La. 2003); Concerned Citizens of Eastover, LLC v. Eastover Neighborhood Improvement and Security District, 214 So.3d 156, 161 (La. App. 4th Cir. 2017) (“Eastover”), writ denied, 220 So.3d 754 (La. 2017); Morial v. Smith & Wesson Corp., 785 So.2d 1, 12 (La. 2001) (“Morial”); Segura v. Frank, 630 So.2d 714, 728 (La. 1994) (“Segura”); see Insurance Carriers infra note 125; see, e.g. Metropolitan Life Ins. Co. v. Morris, 159 So. 388 (La. 1935) (applying Blaisdell to uphold a Louisiana mortgage moratorium law). |
119 | Segura, 630 So.2d at 728; accord Higginbotham v. City of Baton Rouge, 183 So. 168, 171 (La. 1938); Eastover, 214 So.3d at 161; see supra note 63. |
120 | Supra pages 21 and 25-27. |
121 | Eastover, 214 So.3d at 162. |
122 | Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1866); D’Antonio v. Board of Levee Commissioners of the Orleans Levee District, 80 So.2d 81, 83 (La. 1955). |
123 | Ranger v. the City of New Orleans, 34 La. Ann. 1149 (1882); see State ex rel. Portierie v. Walmsley, 162 So. 826 (La. 1935). |
124 | Wolff v. New Orleans, 103 U.S. 358, 365, 367 (1880). |
125 | 2006-CD-2030, 937 So.2d 313 (La. 2006) (“Insurance Carriers”). |
126 | The defendants’ other arguments, regarding standing, procedural due process, and federal supremacy clause preemption as it relates to federal flood insurance, were all rejected as well. |
127 | Insurance Carriers, 937 So.2d at 324, quoting Segura, 630 So.2d at 729; Energy Reserves, 459 U.S. at 410-413. As noted above, supra page 21, the courts are inconsistent as to whether the test has two factors, three factors (with subparts) or four factors. See Mary Garvey Algero, Will A Decision That Has the Potential to Do so Much Good for the People of Louisiana Set a Harmful Precedent, 53 Loy. L.Rev. 47, 60 (2007). Cf. supra note 85. |
128 | Insurance Carriers, 937 So.2d at 325. See infra note 194. This deference to the Louisiana Legislature’s judgment by the Louisiana Supreme Court is well-established in Louisiana jurisprudence. A recent example is Bienvenu v. Defendant 1 and Defendant 2, 2023-CC-01194 (La. 06/12/2024) (on rehearing), 386 So.3d 280. The Louisiana Supreme Court upheld a legislative act against a substantive due process challenge. The Louisiana Legislature revived previously prescribed causes of action (barred by liberative prescription, the civil law equivalent to statutes of limitation) for sexual abuse of minors, giving this law retroactive effect. The Louisiana Supreme Court acknowledged that the defendant’s right to claim this acquired defense is a substantive and vested property right protected by due process guarantees. The essence of substantive due process is protection from arbitrary and unreasonable government action, and where legislation involves social or economic regulation it need only have a rational relationship to a legitimate government interest to survive substantive due process scrutiny. The challenged legislation is social welfare legislation and thus the applicable due process test is whether the legislation is reasonable in relation to the goal to be obtained and is adopted in the interest of the community as a whole. Bienvenu, 386 So.3d at 290-91. The Louisiana Supreme Court concluded that the revival provision is rationally related to a legitimate government interest. Importantly, the Louisiana Supreme Court stated that “[i]t is uniquely the role of the legislature to weigh the myriad policy considerations” and “[t]his court’s role is not to reweigh the legislature’s policy decision.” Bienvenu, 386 So.3d at 291. The opinion noted that the property right at issue is only “an economic interest” that does not implicate fundamental rights. The opinion quoted approvingly prior jurisprudence discussing that the police power of the state supports laws even though their effect is to strike down private contracts if for adequate reasons. Bienvenu, 386 So.3d at 290. Significantly, the opinion discussed with approval Insurance Carriers, which rejected both a contract clause challenge and a due process challenge because the economic legislation at issue had a legitimate legislature purpose furthered by rational means. Bienvenu, 386 So.3d at 289, n.9. |
129 | Insurance Carriers, 937 So.2d at 325, citing Segura, 630 So.2d at 731, citing Blaisdell. |
130 | Insurance Carriers, 937 So.2d at 327, n.13. Similarly, after the Northridge earthquake, California created a statute extending the time for policyholders to bring claims under their policies. The statute survived scrutiny under the Contract Clause even though it revived claims otherwise time-barred under existing policies. Courts found the statute sufficiently limited in scope, balancing the interference with existing policies against California's need to protect policyholders. The statute revived claims only for one year, applied only to claims arising out of the Northridge earthquake and applied only to policyholders who met certain qualifications. Moreover, the statute affected the policy's remedies, not its core provisions. Hellinger v. Farmers Group, Inc., 91 Cal. App. 4th 1049, 1066 (2001), review denied, 2002 Cal. LEXIS 1221 (Cal. 2002); see also Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1098-99 (9th Cir. 2003) (noting that this particular impairment is less severe because the revived and extended limitations period is mandated by statute and not bargained for and because the insurance industry is heavily regulated); 20th Century Ins. Co. v. Superior Court, 90 Cal. App. 4th 1247 (2001), review denied, 2001 Cal. LEXIS 7080 (Cal. 2001), cert. denied, 535 U.S. 1033 (2002). |
131 | Insurance Carriers, 937 So.2d at 326-27; supra note 111. |
132 | U.S. Trust, 431 U.S. at 23, supra note 105; Melendez, supra note 89, 16 F.4th at 1017 n.40 (2d. Cir. 10/28/2021) (“police power [is] the linchpin for the balancing principle that now cabins the Contracts [sic] Clause’s impairment prohibition”) (see supra note 62); Matsuda v. City and County of Honolulu, 512 F.3d 1148, 1153 (9th Cir. 2008) (explaining that the “initial task” in applying the reserved powers doctrine “is to determine whether the state had the power to create irrevocable contract rights in the first place”); see infra note 134 and pages 63-69. |
133 | City of New Orleans v. Board of Comm’rs of the Orleans Levee District, 640 So.2d 237, 249 (La. 1994) (“the principle that the exercise of the police power of the state shall never be abridged needs no constitutional reservation to support it”, so the failure of the 1974 Louisiana Constitution to restate the precept as a general provision, as previous Louisiana Constitutions had done, does not detract from the principle); Board of Comm’rs v. Department of Natural Resources, 496 So.2d 281, 289 (La. 1986) (“Board of Comm’rs”) (“It is a general principle of judicial interpretation of a state constitution, as well as a specific prohibition of our constitution, that the legislature may not irrevocably alienate, surrender or abridge the right to exercise the police power.”) (citations omitted); accord Ex Parte Steckler, 154 So. 41, 44 (La. 1934) (“a fundamental rule in our form of state government is that the Legislature cannot surrender irrevocably any of the state’s police power.”) (citations omitted). See Melendez, supra note 89, 16 F.4th at 1020-21 (2d Cir. 10/28/2021). Similarly, the Louisiana Constitution in Article 1, Section 4 expressly makes the Louisiana Takings Clause subject to the reasonable exercise of the police power. Supra note 54 and infra notes 213 and 237. |
134 | See supra pages 8-9; Baton Rouge Waterworks Co. v. LPSC, 100 So. 710, 711 (La. 1924) (“It is conceded on well-recognized authority that the ratemaking power, whether exercised by agreement or by the fiat of law, is within the police power of the state as one of the state’s highest attributes of sovereignty, and that this power can never be abridged nor irrevocably surrendered where there is, as in this state, constitutional inhibition.”); accord City of Baton Rouge v. Baton Rouge Waterworks Co., 30 F.2d 895 (5th Cir. 1929); City of New Orleans v. O’Keefe, 280 F. 92 (5th Cir. 1922); State v. City of New Orleans, 151 La. 24, 30, 91 So. 533, 535 (La. 1922) (“cannot surrender irrevocably or bargain away the authority to fix or control rates for public utilities”); compare United Gas Corp. v. City of Monroe, 109 So.2d 433 (La. 1958) (city’s contract fixing rates for a term binding on parties where Legislature has delegated ratemaking power to municipalities but always reserves the power to revoke or compel a change in such rate); City of New Orleans v. Great S. Tel & Tel. Co., 3 So. 533, 534 (La. 1888) (City’s grant of franchise authority to utility had become an “irrevocable contract, and the city is powerless to set it aside or to interpolate new or more onerous considerations therein”); accord BellSouth Communications, LLC v. City of New Orleans, 31 F. Supp. 3d 819 (E.D. La. 2014). See infra note 213. |
135 | Gulf States Utilities Co. v. LPSC, 633 So.2d 1258, 1264 (La. 1994); Conoco, 520 So.2d at 408; see supra notes 15 and 69 (ratemaking is an act and function legislative, and not judicial, in kind, within the police power of the state), and infra note 136 (the establishment of a rate is an act legislative and not judicial in nature, NOPSI at 371). |
136 | New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989) (“NOPSI”) (“The regulation of utilities is one of the most important of the functions traditionally associated with the police power of the states.”) (citations and internal quotation marks and brackets omitted); see supra notes 15 and 69; Pacific Gas & Elec. v. State Energy Resources Conservation, 461 U.S. 190, 206 (1983). |
137 | Opelousas, 105 So.3d at 32. |
138 | Morial, 785 So.2d at 15 (citations omitted) (emphasis added). |
139 | Morial, 785 So.2d at 15-16. |
140 | See Board of Comm’rs, 496 So.2d at 293 (“Into all contracts, whether made between states and individuals or between individuals only, there enters the condition, regardless of whether it is carried into express stipulation, that the state may not bargain away or otherwise be prevented from exercising its police power, viz., the exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people.”) (citations omitted). See infra pages 63-69. |
141 | Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008) (“Winter”). |
142 | University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); Wenner v. Texas Lottery Comm’n, 123 F.3d 321, 326 (5th Cir. 1997) (“Preliminary injunctions commonly favor the status quo and seek to maintain things in their initial condition so far as possible until after a full hearing permits final relief to be fashioned.”) (citations omitted) |
143 | Morales v. TWA, 504 U.S. 374, 381 (1992). |
144 | Winter, 555 U.S. at 20. See also, e.g., Illinois Republican Party v. Pritzker, 973 F.3d 760, 762-63 (7th Cir. 2020) (abrogating earlier circuit authority indicating lesser requirement with respect to likelihood of success on the merits), cert. denied, 141 S. Ct. 1754 (2021). |
145 | Winter, at 23-26. |
146 | Atchafalaya Basinkeeper v. U.S. Army Corp of Eng’rs, 894 F.3d 692, 696 n.1 (5th Cir. 2018). |
147 | Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016) (quoting Bluefield Water Ass’n, Inc. v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009)); see also, e.g., Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451, 456-57 (5th Cir. 2016) (quoting PCI Transp., Inc. v. Fort Worth & W.R.R., 418 F.3d 535, 545 (5th Cir. 2005) (same)), cert. denied, 138 S. Ct. 638 (2018). Accord Apt. Ass’n of L.A. County v. City of Los Angeles, 10 F.4th 905, 912 (9th Cir. 2021), cert. denied, 142 S. Ct. 1699 (2022) (affirming denial of preliminary injunction against City’s eviction moratorium during COVID-19; applying the same standard and four factors and asserting likelihood of success on the merits is the most important factor). |
148 | Sampson v. Murray, 415 U.S. 61, 90 (1974); Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (purely economic harms are generally not irreparable, as money lost may be recovered later, in ordinary course of litigation); Melancon, 703 F.3d at 279-80; Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 982 (9th Cir. 2011). Irreparable harm must be likely in the absence of an injunction, not merely possible. Winter, 555 U.S. at 22. As noted below, infra notes 154, 163-166, and 172, the availability of injunctive and declaratory relief might be limited where the State’s actions constitute an unconstitutional taking, or merely a breach of contract (as opposed to an impairment of contract), for which the aggrieved party can recoup money damages at law. See also supra note 50. Furthermore, federal courts have found that a delay in the receipt of payments until final judgment is not the type of “irreparable harm” which justifies a preliminary injunction, absent special countervailing circumstances such as the possibility that such delay could result in the claimant’s insolvency or the closure of the claimant’s business. See, e.g., Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 and n.1 (7th Cir. 1984); Melancon, 703 F.3d at 279; cf. Ridgely v. Federal Emergency Management Agency, 512 F.3d 727 (5th Cir. 2008) (discussing standards for injunction in due process claim and requiring that government’s procedures be constitutionally inadequate); Alabama Ass’n of Realtors v. Dept. of Health and Human Services, 2021 U.S. Lexis 3679, 2021 WL 3783142, 141 S. Ct. 2485 (U.S. 2021) (per curiam) (equities favor millions of landlords at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery, vacating stay of judgment that voided nationwide moratorium on eviction as exceeding the authority of the Centers for Disease Control and Prevention); Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 146 (7th Cir. 1987) (discussing dissipation of assets); Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 848-49 (5th Cir. 2004) (holding that district court did not abuse its discretion in denying injunctive relief despite one factor in analysis being that defendant’s insolvency may render incapable of responding in damages). Because delay in scheduled expected payments may not suffice alone (see, e.g., Roland Mach, Co. supra at 386), other factors that make a remedy at law inadequate may be needed. See Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011) (monetary asset dissipation; noting that some courts have found that a remedy at law is inadequate if legal redress may be obtained only by pursuing a multiplicity of actions); U.S. Trust, 431 U.S. at 19 (difficulty in calculating damages: “[N]o one can be sure precisely how much financial loss the bondholders suffered” from the repeal of the state pledge); United States v. Miami Univ., 294 F.3d 797, 819 (6th Cir. 2002). Importantly, injunctive relief might be available if sovereign immunity would preclude a suit for damages. See supra note 58 and infra note 172; Idaho v. Couer d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (affirming grant of preliminary injunction where Indian tribe’s sovereign immunity likely would bar the plaintiff from recovering monetary damages incurred during the course of litigation caused by the tribe’s violation of statute and contract); New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 388 (3d Cir. 2012) (upholding preliminary injunction in Contract Clause case where, in the absence of injunction, merchants would have to pay money to the state that could not be recovered later due to sovereign immunity). Furthermore, an argument may be asserted that when an alleged deprivation of a constitutional right is involved, no further showing of irreparable injury is necessary. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021) (“Because there is a likely constitutional violation, the irreparable harm factor in satisfied.”), Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (irreparable harm requirement satisfied by alleged violation of First Amendment rights); see infra notes 197-198. But see Brown v. Sec’y, U.S. Dep’t of Health and Human Services, 4 F.4th 1220, 1225 (11th Cir. 07/14/2021) (restricting constitutional irreparable injuries to First Amendment violations and right of privacy claims, finding no irreparable injury to allow a preliminary injunction against COVID-19 eviction moratorium), vacated as moot, 20 F.4th 1385 (11th Cir. 12/29/2021). |
149 | Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2008); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979-80 (9th Cir. 2011). |
150 | Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959); Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 847-48 (5th Cir. 2004). |
151 | eBay Inc. v. MercExchange, L.L.C., 547 U.S. at 391. |
152 | 28 U.S.C. § 2201; Wilton v. Sevin Falls Co., 515 U.S. 277, 282-83 (1995). |
153 | The LPSC’s role in issuing the Financing Order approving the Energy Transition Charges requires consideration of another possible jurisdictional limitation, under the Johnson Act, codified at 28 U.S.C. § 1342. The Johnson Act provides that federal district courts “shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a ratemaking body of a State political subdivision, where: |
| (1) | Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and |
| (2) | The order does not interfere with interstate commerce; and |
| (3) | The order has been made after reasonable notice and hearing; and |
| (4) | A plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1342. |
First, this provision applies only to orders “affecting rates” charged by a public utility; thus, federal jurisdiction over an action by the LPSC affecting regulation other than ratemaking would not be barred by the Johnson Act. Note the Johnson Act does not divest a federal district court of jurisdiction where the challenge is to a statute and not a rate order. South Carolina Electric & Gas Co. v. Randall, 331 F. Supp. 3d 485, 493 (D. S.C. 2018). Even as to orders affecting rates, however, the order must not interfere with interstate commerce. In the case of an LPSC supplemental order that effected an impairment or taking, or any rescission, amendment or violation of the Pledge, the order would virtually by definition affect interstate commerce, as it would affect the value of the Bonds, either directly or indirectly through manipulation of the Energy Transition Charges. Compare Nucor Corp. v. Nebraska Public Power Dist., 891 F.2d 1343, 1348 (8th Cir. 1989) (Johnson Act inapplicable where challenged rate overcharge of nearly $7 million affected cost of goods of plaintiff, who sold those goods in interstate commerce), cert. denied, 498 U.S. 813, 111 S. Ct. 50, 112 L. Ed. 2d 60 (1990). The Securitization Act [La. R.S. 45:1271(B) and (C) and 1279(C)], and the Financing Order [Findings of Fact Paragraphs 36, 96, and 97 and Ordering Paragraph 24] explicitly seek low-cost capital in reliance upon the securities financial markets and therefore interstate commerce, implicating the core intent of the Federal Contract Clause “to encourage trade and credit by promoting confidence in the stability of contractual relations”, U.S. Trust, 431 U.S. at 16. For these reasons, even though in determining whether an order constitutes interference with interstate commerce each case must be dealt with on its own facts and circumstances, in our view the Johnson Act should not comprise a bar to federal jurisdiction. |
154 | Supra notes 50 and 148 and infra notes 163-166 and 172; Monsanto, supra note 23, 467 U.S. at 1016, accord Melancon, 703 F.3d at 279-280. |
155 | 588 U.S. 180, 139 S. Ct. 2162 (2019) (“Knick”), overruling Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) (“Williamson”). |
156 | Knick, 139 S. Ct. at 2167 and 2170. |
157 | See infra note 172. |
158 | Knick, 139 S. Ct. at 2172-73. |
159 | Peyman Pakdel v. City and County of San Francisco, 594 U.S. 474, 141 S. Ct. 2226, 2228, 2021 WL 2637819 (2021) (per curiam) (“Pakdel”). |
160 | Pakdel, 141 S. Ct. at 2230. A plaintiff’s failure to properly pursue administrative procedures still may render a takings claim unripe if avenues still remain for the government to clarify or change its decision. Id. at 2231. |
161 | Id. at 2228, 2229 (quoting Knick, 139 S. Ct. at 2171). |
162 | Id. at 2231. Similarly, harm occurs, and a claim is ripe under the Federal Contract Clause, upon passage of the legislation when a law interferes with valid expectancy interests, creating an “actual, concrete, and particularized” injury. Lazar v. Kronckce, 862 F.3d 1186, 1198-99 (9th Cir. 2017). See Franklin, supra note 3, 85 F. Supp. 3d at 611 (facial Federal Takings Clause became ripe the moment the challenged statute was enacted). |
163 | Knick, 139 S. Ct. at 2176. |
164 | “Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate.” Id. at 2177. As long as just compensation remedies are available, injunctive relief will be foreclosed. Id. at 2179. See supra notes 148 and 154 and infra note 172. |
165 | Knick, 139 S. Ct. at 2168. |
166 | Baptiste v. Kennealy, 490 F. Supp. 3d 353 (D. Mass. 2020) (landlords denied preliminary injunction against state legislation establishing a temporary moratorium on residential evictions during Covid pandemic). See generally Severance v. Patterson, 566 F.3d 490, 498 (5th Cir. 2009) (“inadequate procedures are those that almost certainly will not justly compensate the claimant”) (quoting Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir. 1991), abrogated on other grounds by Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl Prot., 560 U.S. 702, 728 (2010). But see infra note 169 (sovereign immunity bars monetary relief under Federal Contract Clause). |
167 | The procedural situation can become complicated. If the challenged action causing the taking is an action of the Legislature, the pertinent question will be whether there exists an administrative/judicial procedure for decisions of the state agency or department charged with enforcing such action. If no such procedure exists, then immediate resort may be had to a suit for just compensation in state district court. If the challenged action is an action of the LPSC, then the Bondholder will first have to proceed through a final resolution of the state procedure for reviewing such orders, including appeal to the state district court and then the Louisiana Supreme Court. See Firth v. Southwest Ouachita Waterworks, Inc., 207 So.3d 1121 (La. App. 2d Cir. 2016) (where there is concurrent jurisdiction between the district court and the LPSC, the doctrine of primary jurisdiction applies, and the district court is obligated to stay any judicial proceedings related to plaintiff’s claims that fall outside the exclusive jurisdiction of the LPSC until the LPSC proceeding is ended). The saga of Liberty Mutual Insurance Company is illustrative, even recognizing the overruling of Williamson. Liberty Mutual claimed, inter alia, that certain rate decisions of the Louisiana Insurance Rating Commission (“LIRC”) deprived it of its property interests. Liberty Mutual filed suit in federal district court seeking compensation under the Federal Takings Clause. The federal Fifth Circuit ordered the claim dismissed as unripe, following Williamson. Liberty Mutual Ins. Co. v. Louisiana Dep’t of Insurance, 62 F.3d 115, 117 (5th Cir. 1995). Liberty Mutual then proceeded to prosecute an inverse condemnation claim in state court. The Louisiana First Circuit court dismissed this claim as well, noting that while Louisiana law clearly recognizes an action for inverse condemnation, Liberty Mutual had still failed to avail itself of the administrative and judicial remedies available for challenging the order of the LIRC, which are a prerequisite to any suit for just compensation. Liberty Mutual Ins. Co. v. LIRC, 1997-1043 (La. App. 1 Cir. 1998), 713 So.2d 1250, 1253-55, writ denied, 1998-2072 (La. 1998), 728 So.2d 396. Liberty Mutual then filed suit again in federal court, and the federal district court dismissed this second suit, noting that Liberty Mutual had still failed to invoke the administrative and judicial remedies available to challenge the LIRC’s rate decisions. The federal Fifth Circuit affirmed this dismissal, and found that because the statute of limitations governing inverse condemnation proceedings had run, the dismissal should be with prejudice. Liberty Mutual Ins. Co. v. Brown, 380 F.3d 793, 796-798 (5th Cir. 2004). See infra note 191; but see Larkin Dev. North, L.L.C. v. City of Shreveport, 297 So.3d 980 (La. App. 2d Cir. 2020) (discussing administrative review and exhaustion doctrine in takings claims). |
168 | Allco Finance Ltd. v. Roisman, 2023 WL 4571965 (2d Cir. 07/18/2023) (Summary Order) (noting that whether Eleventh Amendment immunity constitutes a true issue of subject matter jurisdiction or is more appropriately viewed as an affirmative defense has not yet been decided by the Supreme Court); Pele v. Pennsylvania Higher Educ. Assistance Agency, 628 F. App’x 870, 871 (4th Cir. 2015); Hall v. Louisiana, 974 F. Supp. 2d 944 (M.D. La. 2013) (“Hall”); Walden v. Nevada, 945 F.3d 1088, 1092-93 (9th Cir. 2019); see also infra notes 169 and 174. |
169 | See, e.g., North Carolina v. Temple, 134 U.S. 22, 25, 30 (1890) (holding that North Carolina enjoys sovereign immunity from claimed violation of Federal Contract Clause) (citing Ex Parte Ayers, 123 U.S. 443 (1887)). The Eleventh Amendment bars suit against a state agency or department or state officials that is in fact a suit against a state, regardless of whether it seeks damages or injunctive relief. Gerlach v. Rokita, 95 F.4th 493, 498 (7th Cir. 03/06/2024), petition for certiorari filed (U.S. 07/03/2024) (No. 24-21); Hall, 974 F. Supp. 2d at 952; Hughes v. Johnson, No. 15-7165, 2016 WL 6124211 (E.D. La. 10/20/2016), court slip op. at 10 (“Hughes”). The LPSC, and individual commissioners sued in their official capacity, have been found entitled to Eleventh Amendment immunity, along with the State of Louisiana, in a suit claiming an unconstitutional taking under the Louisiana Constitution. Union Pacific R.R. Co. v. LPSC, 662 F.3d 366 (5th Cir. 2011). The jurisprudential factors determining whether an entity such as the LPSC is covered by the State of Louisiana’s Eleventh Amendment immunity suggest that all Louisiana executive departments have Eleventh Amendment immunity. Vogt v. Board of Comm’rs of the Orleans Levee District, 294 F.3d 684, 692 (5th Cir. 2002); Champagne v. Jefferson Parish Sheriff’s Office, 188 F. 3d 312, 313 (5th Cir. 1999). But see Bonin v. Sabine River Authority, 65 F.4th 249, 255 (5th Cir. 2023) (questioning suggestion that all Louisiana executive departments have Eleventh Amendment immunity; applying Fifth Circuit’s six factors to guide “arm of the state” analysis), cert. denied, 144 S. Ct. 287 (U.S. 10/10/2023). The LPSC is the executive head of the Department of Public Service, within the executive branch. La. R.S. 36:721 and 723; see La. Const. art. IV, sec. 21 (the LPSC is in the executive branch). A suit against individual state officers for injunctive relief might be available under Ex Parte Young, as discussed below infra notes 181-183. See also Union Pacific, 622 F.3d at n.5. |
170 | A state’s waiver of sovereign immunity in one form or against one class of claims cannot necessarily be construed to be waiver of sovereign immunity in other forms or against other claims. McElrath v. United States, 102 U.S. 426, 440 (1880). Federal courts continue to bar federal takings claims against states brought in federal district court, and every court of appeals to have faced the question has held that the Eleventh Amendment bars federal takings claims against states in federal district court when the state courts remain open to adjudicate such claims, and (more recently) that Knick (which did not involve Eleventh Amendment immunity, as that suit involved a town without sovereign immunity, unlike a state) did not abrogate state sovereign immunity in federal court. Gerlach v. Rokita, 95 F.4th 493, 498-500 (7th Cir. 03/06/2024), petition for certiorari filed (U.S. 07/03/2024) (No. 24-21); O’Connor v. Eubanks, 83 F.4th 1018, 1024 (6th Cir. 10/06/2023), rehearing en banc denied, 2023 U.S. App. LEXIS 33649, petition for certiorari filed (U.S. 04/26/2024) (No. 23-1167), EEE Minerals, LLC v. State of North Dakota, 81 F.4th 809, 816 (8th Cir. 08/30/2023), cert. denied, 144 S. Ct. 1097 (U.S. 03/25/2024); Pharmaceutical Research and Manufacturers of America v. Williams, 64 F.4th 932, 948-950 and n.13 (8th Cir. 04/03/2023); 74 Pinehurst LLC v. State of New York, 59 F.4th 557, 570 and n.7 (2d Cir. 02/06/2023), cert. denied, ___ S. Ct. ___, 218 L. Ed. 2d 66, 2024 WL 674658 (02/20/2024); Pavlock v. Holcomb, 35 F.4th 581, 589 (7th Cir. 05/22/2022), cert. denied, 143 S. Ct. 374 (10/31/2022); Zito v. North Carolina Coastal Res. Comm’n, 8 F.4th 281, 284-85, 290-91 (4th Cir. 2021), cert. denied, 142 S. Ct. 465 (11/06/2021); Ladd v. Marchbanks, 971 F.3d 574 (6th Cir. 2020), cert. denied, 141 S. Ct. 1390 (2021) (“Ladd”); Bay Point Props., Inc. v. Mississippi Transp. Comm’n, 937 F.3d 454, 456-57 (5th Cir. 2019), cert. denied, 140 S. Ct. 2566 (2020); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019). See Hutto v. South Carolina Retirement System, 773 F.3d 536, 553 (4th Cir. 2014) (claims under the Federal Takings Clause are not exempt from the protection of the Eleventh Amendment). Jachetta v. U.S., 653 F.3d 898, 910 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948 (9th Cir. 2008), cert. denied, 129 S. Ct. 258, 172 L. Ed. 2d 147, 77 USLW 3058 (U.S. 2008); DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004), overruled on other grounds by San Remo Hotel L.P. v. City & County of San Francisco, 545 U.S. 323 (2005); Harbert Int’l, Inc. v. James, 157 F.3d 1271 (11th Cir. 1998); John & Marie Stella Kenedy Mem’l Found. v. Mauro, 21 F.3d 667 (5th Cir. 1994). Nonetheless a modicum of uncertainty remains as to whether a State’s declaration of sovereign immunity against a federal takings claim should have effect. DeVillier v. Texas, 601 U.S. 285, 292, 144 S. Ct. 938, 994 (2024) (acknowledging that Supreme Court’s “precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause,” including against a state); EEE Minerals, LLC v. State of North Dakota, 81 F.4th 809, 816 (8th Cir. 08/30/2023) (“The Supreme Court has not directly addressed the interplay between the Fifth Amendment and the Eleventh Amendment.”), cert. denied, 144 S. Ct. 1097 (U.S. 03/25/2024); City of Monterrey v. Del Monte Dunes at Monterrey Ltd., 526 U.S. 687, 713-714 (1999) (assuming arguendo that the “sovereign immunity rationale retains its vitality in cases where [the Fifth] Amendment is applicable”); Bay Point Props., Inc., supra, 937 F.3d at 456, n.1 (5th Cir. 2019) (acknowledging that “the tension” between state sovereign immunity and the right to just compensation is an issue for the Supreme Court); Allen v. Cooper, 555 F. Supp. 3d 226 (E.D. NC 08/18/2021) (Knick’s reasoning fatally undermined rule of state sovereign immunity to a federal forum for a federal takings claim, despite contrary decisions of federal appellate courts), appeal dismissed, 2022 WL 19226124 (4th Cir. 10/14/2022). |
171 | See, e.g., La. Const. Art. XII, Sec. 10; La. R.S. 13:5111 (part of Louisiana Governmental Claims Act). The State of Louisiana has not waived its Eleventh Amendment immunity from federal court jurisdiction. Blanchard v. Newton, 865 F.Supp.2d 709, 715-716 (M.D. La. 2012). Indeed, Louisiana has explicitly asserted its sovereign immunity by statute. La. R.S.13:5106(A) (“[N]o suit against the state or state agency or political subdivision shall be instituted in any court other than a Louisiana state court”); Hughes, court slip op. at 9. Of course, sovereign immunity may not stand in the way of recovery in state court. Jachetta v. U.S., 653 F.3d 898, 909 (9th Cir. 2011); Larkin Dev. North, LLC v. City of Shreveport, 297 So.3d 980, 990 (2d Cir. 2020); Mid-City Automotive, L.L.C. v. Department of Public Safety and Corrections, 2021-1024 (La. App. 1 Cir. 04/08/2022), 342 So.3d 50. |
172 | Knick, 139 S. Ct. at 2176-77, 2179; Monsanto, 467 U.S. at 1016. See supra notes 50 and 148. In cases where the state is a party to the contract, the question arises as to whether the state action is a breach of contract, rather than an impairment of contract. The distinction turns upon the availability of a remedy in damages. See, e.g., TM Park Avenue Assoc. v. Pataki, 214 F.3d 344, 348-49 (2d Cir. 2000). “If a contract is merely breached and the duty to pay damages remains, then the obligation of the contract remains and there has been no impairment.” Id., at 349; accord Horwitz-Mathews, Inc. v. City of Chicago, 78 F.3d 1248, 1250-51 (7th Cir. 1996). See supra note 148. In any event, state officials in their official capacities are routinely afforded Eleventh Amendment immunity. Bennett v. City of Atlantic City, 288 F. Supp. 2d 675, 679-80 (D.N.J. 2003) (collecting cases). But it should be noted that a claim for damages against a state officer can be made in federal court through the artifice of an “individual capacity” suit, in this case against the individual commissioners of the LPSC and/or the pertinent state enforcement officer. Alden v. Maine, 527 U.S. 706, 757, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (“Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.”). It is unclear in this forecasted context, however, which individual state official would be suitably involved in, for instance, the conduct of the repeal of the Securitization Act by the State. See infra notes 181-183. Moreover, in such “individual capacity” lawsuits, a defendant enjoys absolute immunity from damages if his conduct can be characterized as “legislative” in character. Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998). Lower level “enforcement” officials, on the other hand, enjoy only “qualified immunity;” that is, they are immune from a damages claim in federal court unless their conduct amounts to a violation of a clearly established constitutional right and is otherwise objectively unreasonable. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The only plausible cause of action pertaining to the Transaction to address such a violation with a damages remedy would be 42 U.S.C. § 1983 (and 28 U.S.C. § 1343), which sounds in tort for purposes of the sovereign immunity analysis. Knick establishes that the settled rule that exhaustion of state remedies is not a prerequisite to an action under § 1983 applies to a Federal Takings Claim. Knick, 139 S. Ct. at 2167, 2172-73; Lafaye v. City of New Orleans, No. 20-41 (E.D. La. 03/09/2021), court slip op. at 12, 14, 2021 WL 886118, overruled on other grounds, No. 21-30358 (5th Cir. 06/01/2022). But it remains unclear whether or not § 1983 provides a cause of action to assert an alleged Federal Contract Clause claim in the first instance, or instead if recourse to § 1983 with respect to the Federal Contract Clause is limited to discrete instances where a state has denied the opportunity to seek judicial adjudication. Iten v. County of Los Angeles, 81 F.4th 979, 985 (9th Cir. 08/30/2023) (Federal Contract Clause claims may be brought under § 1983); Heights Apartments, LLC v. Walz, 30 F.4th 720, 727-28 (8th Cir. 04/05/2022), rehearing en banc denied, 2022 U.S. App. LEXIS 16863 (assuming, without deciding, the uncontested issue of whether a cause of action for a Contract Clause violation may be brought under § 1983; noting circuit split); Kaminski v. Coulter, 865 F.3d 339 (6th Cir. 2017) (noting unresolved circuit split, and joining the Fourth Circuit in holding that an alleged Federal Contract Clause violation cannot give rise to a cause of action under § 1983); Crosby v. City of Gastonia, 635 F.3d 634 (4th Cir. 2011); Melancon, supra note 35, 703 F.3d at n.14 (5th Cir. 2012). cf. DeVillier v. Texas, 601 U.S. 285, 144 S. Ct. 938 (2024) (“We granted certiorari to decide whether ‘a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.’ “) Congress has not, however, abrogated the states’ sovereign immunity in federal court for claims arising under § 1983. Gerlach v. Rokita, 95 F.4th 493, 501 (7th Cir. 03/06/2024), petition for certiorari filed (U.S. 07/03/2024) (No. 24-21); Pavlock v. Holcomb, 35 F.4th 581, 589 (7th Cir. 05/25/2022); Ladd v. Marchbanks, supra note 170, 971 F.3d at 578 and n.4; Hughes, supra note 169, at 9; Hall, supra note 168, 974 F. Supp. 2d at 953. (Louisiana in any event cannot prevent a suit in state court under § 1983 by a sovereign immunity defense. Alden, 527 U.S. at 756.) However, given the character of the anticipated state action, the individual state actors very likely would be entitled to absolute immunity, as their conduct would be the exercise of legislative judgment, or at least qualified immunity. See Louisiana Farms v. Louisiana Dep’t of Wildlife and Fisheries, 95-845 (La. App. 3 Cir. 1996), 685 So.2d 1086, 1092-99, writ denied, 97-0486, 97-0507 (La. 1997), 692 So.2d 420, 422. See infra notes 176-179. We also note the possible applicability of Louisiana’s discretionary function immunity statute, which protects state officers from liability when making policy or exercising discretionary functions. La. R.S. 9:2798.1; Minvielle v. Iberia Parish Gov’t, 317 So.3d 588, 595-98 (La. App. 3d Cir. 2019) (takings claim barred by discretionary immunity statute because legislative functions are exactly the type of discretionary functions covered; discretion grounded in social, economic, or political activity shielded); Commerce & Industry Ins. Co. v. Grinnell Corp., 280 F.3d 566, 570-72 (5th Cir. 2002); Blanchard v. Newton, 865 F.Supp.2d 709, 717 (M.D. La. 2012). cf Rosehill Construction, LLC vs. Ted Hebert, LLC, 2022-0486 (La. App. 1st Cir. 11/28/2022), 356 So.3d 1115 (discretionary immunity statute protects the government from liability “only at the policy making or ministerial level, not at the operational level”). |
173 | 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). |
174 | Mayfield v. Texas Dep’t. of Criminal Justice, 529 F. 3d 599 (5th Cir. 2008); Town of Barnstable v. O’Connor, 786 F.3d 130 (1st Cir. 2015) (“Barnstable”) (pivotal question is whether the relief serves directly to bring an end to a present violation of federal law, as opposed to relief that would have much the same effect as a full-fledged award of damages) (internal quotation marks and citations omitted); Hughes, supra note 169 at 10; Terrebonne Parish NAACP v. Jindel, 154 F. Supp. 3d 354 (M.D. La. 2015) (Louisiana governor and attorney general sued in their official capacity are “persons” under § 1983); but see supra note 172 and infra note 181. Conversely, under the Eleventh Amendment a federal court is without jurisdiction to impose a damages award upon any state agency or department (including state officials sued in their official capacities) for any past violation of federal law, including any unconstitutional “taking” or “impairment of contracts.” See Hutto v. South Carolina Retirement System, 773 F.3d 536, 549 (4th Cir. 2014); DLX, Inc. v. Kentucky, 381 F.3d 511, 526-28 (6th Cir. 2004) (discussing issue) overruled on other grounds by San Remo Hotel L.P. v. City and County of San Francisco, 545 U.S. 323 (2005); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948 (9th Cir. 2008); Blanchard v. Newton, 865 F.Supp.2d 709, 715 (M.D. La. 2012); see supra notes 168-169. Thus ‘“Ex Parte Young cannot be used to obtain an injunction requiring the payment of funds from the State’s treasury.’” Ladd, supra note 170, 971 F.3d at 581 (6th Cir. 2020) (quoting Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 256-57 (2011)). |
175 | Allco Finance Ltd. v. Roisman, 2023 WL 4571965 (2d Cir. 07/18/2023) (Summary Order) (Ex Parte Young exception to Eleventh Amendment allows suit against commissioners of the Vermont Public Utility Commission in their official capacities for prospective injunctive relief to end a continuing violation of federal law); Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535 U.S. 635, 645, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002) (noting Ex Parte Young was a suit against state regulatory commissioners to enjoin a commission order requiring a reduction in rates); Mi Familia Vota v. Ogg, 105 F.4th 313, 325 (5th Cir. 06/20/2024); Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 451 (5th Cir. 01/20/2022); State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71 (2d Cir. 2007); ACLU Foundation of Louisiana v. Blanco, 523 F. Supp. 2d 476 (E.D. La. 2007). But see infra note 179. Moreover, a declaration of the past, as well as the future, ineffectiveness of a state commission’s action is not barred because it does not impose upon the state a monetary loss resulting from a past breach of a legal duty on the part of defendant state officials. Barnstable, 786 F.3d at 139. |
176 | See Hall, supra note 168, 974 F. Supp. 2d at 954-57; Louisiana Farms v. Louisiana Dep’t of Wildlife and Fisheries, 95-845 (La. App. 3 Cir. 1996), 685 So.2d 1086, 1092-99, writ denied, 97-0486, 97-0507 (La. 1997), 692 So.2d 420, 422. |
177 | See supra notes 15, 69, 135, 172, and 179. |
178 | Sable v. Myers, 563 F.3d 1120, 1123 (10th Cir. 2009); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 133 (5th Cir. 1986). |
179 | Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 959 (9th Cir. 2010) (“the importance of absolute legislative immunity to our system of government cannot be overstated”, 623 F.3d at 964); State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71 (2d Cir. 2007); Hall, supra note 168, 974 F. Supp. 2d at 954-57 (holding state officials with functionally legislative duties have absolute legislative immunity against injunctive as well as damage suits in their official capacities, in addition to immunity from damages claims in their individual personal capacities, and discussing the arguably contradictory precedents). See supra notes 69 and 169. The Financing Order in Ordering Paragraph 52 as part of the LPSC Pledge prohibits any cause or right of action for damages against the individual commissioners in reliance thereon. |
180 | Verizon Maryland, Inc., supra note 175, 535 U.S. at 645-46, 122 S. Ct. at 1760-61. But see, e.g., supra notes 172 and 179 and infra note 183, and Hall, supra note 168, 974 F. Supp. 2d at 955 (state officials with functionally legislative duties have absolute legislative immunity against injunctive as well as damage suits in their official capacities). |
181 | The Ex Parte Young exception to the Eleventh Amendment applies only where the party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional has some connection with the enforcement of the act or is specifically charged with the duty to enforce the statute and is threatening to exercise that duty. Hall, supra note 168, 974 F. Supp. 2d at 954. Thus, a governor cannot be enjoined by virtue of his general duty to enforce the laws, and an attorney general cannot be enjoined where he has no specific statutory authority to enforce the statute at issue. Hutto v. South Carolina Retirement Systems, 773 F.3d 536, 550 (4th Cir. 2014). See infra notes 172 and 174. |
182 | Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535 U.S. 635, 645-46, 122 S. Ct. 1753, 1760-61 (2002); Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (suit under Federal Takings Clause and Federal Contract Clause seeking to enjoin Pennsylvania officer from enforcing allegedly unconstitutional state statute); Lipscomb v. Columbus Municipal Separate School District; 269 F.3d 494 (5th Cir. 2001) (“Lipscomb”); Terrebonne Parish NAACP, supra note 174. |
183 | See, e.g., supra at notes 148, 169, 172, and 174. |
184 | NOPSI, supra note 136, 491 U.S. at 359 (“thus, there are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is the normal thing to do.”) (internal quotation marks and citation omitted). Gearing v. City of Half Moon Bay, 54 F.4th 1144, 1148 (9th Cir. 2022) (rejecting argument that Knick and Pakdel preclude abstention in takings litigation, applying the parallel “Pullman abstention” doctrine and noting that neither case explicitly limits or even addresses abstention in takings litigation), cert. denied, 144 S. Ct. 95 (U.S. 10/02/223). See State of Louisiana v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in the State of Louisiana, No. 06-519 (M.D. La. Aug. 17, 2006) (order granting remand to state court). |
185 | 319 U.S. 315 (1943) (“Burford”); In re Entrust Energy, Inc., 101 F.4th 369, 388 (5th Cir. 04/29/2024); Occidental Chemical Corp. v. LPSC, 494 F. Supp. 2d 401, 414 (M.D. La. 2007). |
186 | NOPSI, 491 U.S. at 361 (internal quotation marks omitted, quoting Colorado River Water Conservation District v. U.S., 424 U.S. 800, 814 (1976)). The federal Fifth Circuit has crafted a five factor test for Burford abstention: “(1) whether the plaintiff raises state or federal claims, (2) whether the case involves unsettled state law or detailed local facts, (3) the importance of the state’s interest in the litigation, (4) the state’s need for a coherent policy in the area, and (5) whether there is a special state forum for judicial review.” In re Entrust Energy, Inc., 101 F.4th 369, 388 (5th Cir. 04/29/2024) (quoting Harrison v. Young, 48 F.4th 331, 339-40 (5th Cir. 2014). |
187 | Compare Burford, 319 U.S. at 331 (claim that Texas oil and gas regulations deprived plaintiffs of due process was of minimal federal importance). |
188 | See infra note 200; compare In re Entrust Energy, Inc., 101 F.4th 369, 392 (5th Cir. 04/29/2024) (ordering Burford abstention in takings claim; Texas has established a centralized scheme for review of Public Utility Commission of Texas orders including review in specified state courts, which normally favors abstention [and which is akin to Louisiana’s scheme]), and Alabama Pub. Serv. Comm’n v. Southern R. Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951) (finding Burford abstention appropriate where state provided statutory right of appeal of Public Service Commission order to single state court, and that appellate court had power to review and set aside any commission order with a further appeal right to the state supreme court). |
189 | Contrast NOPSI, 491 U.S. at 363; (“[N]o inquiry beyond the four corners of the Council’s retail rate order is needed to determine whether it is facially pre-empted by FERC’s allocative decree and relevant provisions of the Federal Power Act.”). |
190 | NOPSI, 491 U.S. at 363; accord In re Entrust Energy, Inc., 101 F.4th 369, 390-91, 393-94 (5th Cir. 04/29/2024) (ordering Burford abstention in bankruptcy case involving takings claim and a key part of Texas’s utility-regulatory scheme); Just Energy Group, Inc. v. Just Energy Texas, L.P., 57 F.4th 241, 254-55 (2023) (ordering Burford abstention in bankruptcy case involving Texas Public Utility Regulatory Act, which establishes a comprehensive and adequate regulatory system for electric utilities). |
191 | Note the Insurance Carriers case discussed above followed a remand to state court by the federal district court after a hearing, following removal by one defendant insurance company of the state court declaratory judgment suit. See supra notes 125 and 167. When Burford abstention is applicable, claims seeking equitable or discretionary relief may be dismissed, while claims for damages may be stayed pending resolution of related state proceedings. In re Entrust Energy, Inc., 101 F.4th 369, 394-95 (5th Cir. 04/29/2024); EL Farmer, Inc. v. Puerto Rico, 693 F. Supp. 3d 202, 2023 WL 6167783, 72 Bankr.Ct.Dec. 225 (D. Puerto Rico 09/22/2023). |
192 | See Pope v. State of Louisiana, 1999-2559 (La. 2001), 792 So.2d 713; Marine Shale Processors, Inc. v. State of Louisiana, Dep’t of Envtl Quality, 551 So.2d 643 (La. App. 1 Cir. 1989), writ denied, 553 So.2d 465 (La. 1989), overruled on other grounds by Matter of American Waste and Pollution Control Co., 580 So.2d 392 (La. App. 1 Cir. 3/11/91), reversed 588 So.2d 367 (La. 1991). Among other procedural requirements, a civil action in Louisiana state district court alleging that a law is unconstitutional must be served upon the Louisiana Attorney General. 2024 Second Extraordinary Session Act 12, enacting La. Code Civ. Proc. art 855.1. In contrast, the United States Supreme Court has made clear that due to the Eleventh Amendment and states’ sovereign immunity federal courts cannot enjoin state officials from violating state law (including a state constitution), Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1989); Ladd supra note 170, 971 F.3d at 582 (6th Cir. 2020). We express no opinion as to the preferable forum. |
193 | See Star Enterprise v. State through Dep’t of Revenue, 95-1980 (La. App. 1 Cir. 1996), 676 So.2d 827, 833, writ denied, 96-1983 (La. 1997), 689 So.2d 1383. Cf. Whole Woman’s Health v. Jackson, 595 U.S. 30, 142 S. Ct. 522, 538 (2021) (per curiam) (noting that “[t]o this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases”); DeVillier v. Texas, 601 U.S. 285, 292, 144 S. Ct. 938, 944 (2024) (“Our constitutional system assigns state officers ‘a coordinate responsibility to enforce [the Constitution] according to their regular modes of procedure.’”) (citation omitted). Louisiana state courts also have jurisdiction for declaratory judgments. La. Code Civ. Proc. art. 1871. Louisiana state courts describe the factors a court must consider before issuing an injunction as whether the party shows (1) that the injury or loss it will suffer is irreparable, (2) that it is entitled to the relief sought, and (3) that it is likely to prevail on the merits. La. Code Civ. Proc. art. 3601. See also Louisiana Granite Yard Inc. v. LA Granite Countertops, LLC, 45,482 (La. App. 2d Cir. 2010), 47 So.3d 573, 581, writ denied, 51 So.3d 733 (La. 2010); Denta-Max v. MaxiCare Louisiana, Inc., 95-2128 (La. App. 4th Cir. 1996), 671 So.2d 995 (same). The right to a permanent injunction must be proved before a preliminary injunction may issue in Louisiana state court. Equitable Petroleum v. Cent. Transmission, 431 So.2d 1084 (La. App. 2d Cir. 1983). |
194 | Cartesian Company, Inc. v. Division of Administrative Law Ethics Adjudicatory Board Panel A, 2023-0038 (La. 2023), 371 So.3d 1041, 1053; accord Bienvenu v. Defendant 1 and Defendant 2, 2023-CC-01194 (La. 06/12/2024) (on rehearing), 386 So.3d 280, 289, 292 (a party challenging the constitutionality of a statute must point to a particular provision of the constitution that would prohibit the enactment of the statute, and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the statute in question) (quotation marks and citation omitted); Westlawn Cemeteries, LLC v. Louisiana Cemetery Board, 339 So.3d 548, 559 (La. 2022); West Baton Rouge Parish Council v. Tullier, 2018-1722 (La. App. 1 Cir. 2021), 317 So.3d 782, 788-89; Carver v. La. Dep’t of Public Safety, 2017-1340 (La. 2018), 239 So.3d 226, 230-31; Krielow v. Louisiana Dep’t. of Agriculture, 2013-1106 (La. 2013), 125 So.3d 384, at 388; Insurance Carriers, 937 So.2d at 319; Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976); c.f. National R.R., 470 U.S. at 463. See also United Auto., Aerospace, Agricultural Implement Workers of Am. Int’l Union v. Fortuño, 633 F.3d 37, 42-45 (1st Cir. 2011) (holding that even if the state is alleged to have impaired a public contract to which it is a party, the plaintiff has the burden to prove that the impairment was not reasonable and necessary to serve an important government purpose, otherwise governments would be forced to endure costly discovery each time a plaintiff advanced a plausible allegation of a substantial impairment). See Alachua County Educ. Ass’n. v. Carpenter, ___ F. Supp. 3d ___, court slip op. at n.22 (N.D. Fla. 07/24/2024) (discussing circuit split); Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 573-74 (R.I. 2020) (collecting cases discussing whether burden of production shifts to the state regarding reasonableness and necessity after a finding of substantial impairment). Compare supra notes 13 and 111 and infra note 203. However, this presumption of constitutionality does not apply when a statute infringes on a fundamental right. State v. Spell, 339 So.3d 1125, 1131 (La. 05/13/2022), (free exercise of religion) (citing United States Supreme Court and Louisiana Supreme Court cases). Of course, an LPSC order modifying the earlier Financing Order, or legislative act modifying the earlier Securitization Act, would create conflicting presumptions of constitutionality, pitting the new legislative action against the Pledges in the original legislative actions. |
195 | South Central Bell Telephone Company v. LPSC, 555 So.2d 1370 (La. 1990) (“SCB”) |
196 | Id. at 1373; see also Entergy Gulf States, Inc. v. LPSC, 730 So.2d 890, 897 (La. 1999). |
197 | SCB, 555 So.2d at 1373 (“when a violation of state property guarantees is shown, a court may enjoin the constitutional violation”); accord Graftaire, LLC v. City of Shreveport, _________, No. 55,741-CA (La. App. 2d Cir. 07/17/2024), ___ So.3d ___, court slip op. at 7 (showing of irreparable harm is unnecessary when the conduct constitutes a violation of a constitutional right); Faubourg Marigny Improvement Ass’n v. City of New Orleans, 195 So.3d 606, 616-17 (La. App. 4th Cir. 2016) (jurisprudential rule requires three findings before plaintiff can circumvent the irreparable harm requirement: conduct to be enjoined violates a prohibitory law (including the constitution); the injunction seeks to restrain conduct, not order it; and plaintiff meets the low burden of making a prima facie showing that he is entitled to the relief sought); Zeringue v. St. James Parish School Board, 130 So.3d 356, 359 (La. App. 5th Cir. 2013) (entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional). There is federal jurisprudence that concurs. See Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). This exception to the irreparable harm requirement applies only when the injunction sought is prohibitory, not mandatory. Yokum v. Pat O’Brien’s Bar, 99 So.3d 74, 81 (La. App. 4th Cir. 2012). See also supra note 148. |
198 | Kruger v. Garden District Association, 779 So.2d 986 (La. App. 4th Cir. 2001) (“we take a restrictive review of this judicially created exception” to the need of showing irreparable injury, perhaps limiting exception to vested “state property” rights); compare Elrod v. Burns, 427 U.S. 347 (1976) (violation of First Amendment rights produces irreparable injury); Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) (violation of Eighth Amendment rights produces irreparable injury); Yokum, supra note 197. But see supra note 148. |
199 | La. R.S. 45:1273(H). See Daily Advertiser v. Trans-La (A Division of Atmos Energy Corp.), 612 So.2d 7, 12 (La. 1993) (antitrust, contract, breach of fiduciary duty and fraud claims that concerned manipulation of fuel adjustment clauses fell within original jurisdiction of LPSC, and district court had no original jurisdiction over such claims); CLECO v. LPSC, 601 So.2d 1383, 1386 (La. 1992) (discussing jurisdictional divide between district court and LPSC adjudicatory jurisdiction); Louisiana Power & Light v. LPSC, 343 So.2d 1040, 1042 (La. 1977) (“LP&L”) (discussing requirement to contest validity of LPSC action before LPSC); Frith v. Southwest Ouachita Waterworks, Inc., 207 So.3d 1121 (La. App. 2d Cir. 2016) (doctrine of primary jurisdiction obligated state district court to stay judicial proceedings related to plaintiffs’ claims that fall outside LPSC’s exclusive jurisdiction until the LPSC proceeding over plaintiffs’ other claims is ended); cf Opelousas, supra note 4 (reimbursement claim for alleged overcharges including securitization charges under a similar statute to the Securitization Act is a rate case subject to the LPSC’s original jurisdiction); compare Cajun for Clean Water, LLC v. Cecelia Water Corp., 206 So.3d 1118 (La. App. 3d Cir. 2016) (state district court, and not LPSC, has original jurisdiction for damages claims). |
200 | Louisiana Power and Light Co. v. LPSC, 369 So.2d 1054, 1058 (La. 1979) (Louisiana Constitution “makes it clear that any judgment of a district court sitting in review of actions” by the LPSC is directly appealable to the Louisiana Supreme Court). See Marco Outdoor Advertising, Inc. v. Regional Transit Authority, 489 F.3d 669 (5th Cir. 2007) (dismissing federal claim because Louisiana state courts provide an adequate procedural remedy for the alleged deprivation of contract property interest); supra note 188. Although we are not aware of a reported judicial decision addressing this question, we believe that the Securitization Act’s venue provision will likely apply in this context, instead of the venue stated in La. R.S. 45:1198.1 which provides that whenever the LPSC seeks the judicial enforcement of an order entered by it, the suit shall be brought in the parish of the domicile of the utility not in compliance with the order. Cf. Opelousas, supra note 4, 105 So.3d at 30-35 (discussing but not deciding alternative venue arguments in challenge to utility’s rates). |
201 | See supra note 200. |
202 | Louisiana Power & Light Co. v. LPSC, 237 So.2d 673, 675 (La. 1970). |
203 | ELL, 221 So.3d at 805 (La. 2017) (citations omitted); Gordon v. Council of City of New Orleans, 9 So.3d 63, 72 (La. 2009) (“Gordon”); Global Tel* Link, 707 So.2d at 33-34; LP&L, 343 So.2d at 1044. See supra note 11, and compare supra note 194. |
204 | Gordon, 9 So.3d at 72; Charles Hopkins DBA Old River Water Company v. LPSC, 2010-0255, 41 So.3d 479 (La. 2010) (“Old River”); Washington St. Tammany Electric Coop. v. LPSC, 959 So.2d 450, 455 (La. 2007); Eagle Water, Inc. v. LPSC, 947 So.2d 28, 33 (La. 2007); Voicestream, 943 So.2d 349, 358 (La. 2006); Entergy Gulf States, Inc. v. LPSC, 730 So.2d 890, 897 (La. 1999). |
205 | Gordon, 9 So.3d at 72; Citgo Petroleum v. LPSC, 815 So.2d 19, 23 (La. 2002); Washington – St. Tammany Electrical Coop. v. LPSC, 671 So.2d 908, 912 (La. 1996). Compare supra note 14. |
206 | Entergy Gulf States v. LPSC, 766 So.2d 521, 527 (La. 2000); Entergy Gulf States, Inc. v. LPSC, 730 So.2d 890, 897-98 (La. 1999). |
207 | Global Tel* Link, 707 So.2d at 33 (an LPSC order is arbitrary and capricious only when the record does not and could not reasonably support its findings); Old River, supra at note 204, at 5 (same); GSU, infra at note 222, at 1264 (unreasonable LPSC order); Central Louisiana Electric Company v. Louisiana Public Service Commission, 373 So.2d 123, 132 (La. 1979) (same effect); Railway Express Agency v. Louisiana Public Service Commission, 145 So.2d 18, 33 (La. 1962) (where the findings and conclusions of the LPSC do not conform to the law and are not supported by the evidence –– so that the order of the LPSC is unreasonable –– the court may reverse or vacate the LPSC’s order). See also, Eagle Water, Inc. v. LPSC, 947 So.2d 28, 33 n.4 (La. 2007) (vacating LPSC order as arbitrary and capricious because record evidence necessary to support LPSC’s decision was absent); Fanny Farms, LLC v. Plaquemines Parish Gov’t, 2023-0098 (La. App. 4th Cir. 11/21/2023), 377 So.3d 838, 844 (zoning order reviewed for taking claim as arbitrary and capricious; “Capriciously can be defined as coming to a decision on a subject when there is no substantial evidence to support it or it is contrary to the evidence given. Arbitrary would be defined as a disregard of evidence or the proper weight thereof.”) (citations and quotation marks omitted). |
208 | Morial v. Smith & Wesson Corp., 785 So.2d 1, 17-18 (La. 2001) (“Morial”). See supra notes 85 and 139. |
209 | Morial, 785 So.2d at 15. Compare Standard Oil Co. of Louisiana v. LPSC, 97 So. 859, 864 (La. 1923) (in those extreme cases in which some fundamental right is invaded or denied, the courts may intervene to compel a recognition of constitutional guarantees). |
210 | 162 So.2d 555 (La. 1964) (“Louisiana Gas Service”). |
211 | Louisiana Gas Service, 162 So.2d at 564 (citations omitted) (emphasis added). |
212 | Louisiana Gas Service, 162 So.2d at 562. |
213 | Id. at 563 (citations omitted). See supra notes 19 and 134. |
214 | Louisiana Gas Service, 162 So.2d at 563. |
215 | 520 So.2d 404 (La. 1988) (“Conoco”). |
216 | Id. at 407. |
217 | Id. at 408. |
218 | Conoco, 520 So.2d. at 409. |
219 | Conoco, 520 So.2d at 407. |
220 | Id. at 408-409 (emphasis added). |
221 | Id. at 409. |
222 | 633 So.2d 1258 (La. 1994) (“GSU”). |
223 | GSU, 633 So.2d at 1258-59 (citations omitted). |
224 | GSU, 633 So.2d at 1264 (emphasis added). |
225 | 627 So.2d 164 (La. 1993), supra note 6. |
226 | Bowie, 627 So.2d at 169. |
227 | Louisiana is not unique in this regard. The reserved powers doctrine is equally critical to this issue regarding subsequent action by a state legislature harmful to securitization transactions in other states. The Financing Order provides in Conclusions of Law Paragraph 4 that the LPSC has authority to approve the Financing Order under the Securitization Act and the LPSC’s constitutional plenary power. |
228 | U.S. Trust, 431 U.S. at 23-24; Melendez supra note 89, 16 F.4th at 1020-21 (2d Cir. 10/28/2021) (discussing history of cases); United Healthcare Ins. Co. v. Davis, 602 F.3d 618 at n.7 (5th Cir. (La. ) 2010); State ex rel. Porterie v. Walmsley, 162 So. 826, 837 (La. 1935). See supra pages 26-27, 31-32, and 39-40. |
229 | Stone v. Mississippi, 101 U.S. 814, at 818, 820-21 (1879); see Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. 2008). |
230 | Supra notes 132-134. Compare In re Halo Wireless, Inc., 684 F.3d 581 (5th Cir. 2012) (state public utility proceedings are within the exception to the bankruptcy automatic stay for governmental units enforcing the state’s police and regulatory power). |
231 | U.S. Trust, 431 U.S. at 24 (a state’s “power to enter into effective financial contracts cannot be questioned”). Compare Stone v. Mississippi, 101 U.S. 814, 817-18 (1880) (state cannot contract away its police powers); West River Bridge Co. v. Dix, 47 U.S. 507, 532-33 (1848) (state cannot contract away its power of eminent domain); cf. Coleman v. Chevron Pipe Line Co., 673 So.2d 291, 295-96 (La. App. 4th Cir. 1996) (power to expropriate, vested in private corporations serving a public purpose, cannot be contracted away); Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So.2d 428, 433 (La. App. 4th Cir.), writ refused, 203 So.2d 86 (La. 1967) (same). See supra note 106 and infra note 245. |
232 | Blaisdell, 290 U.S. at 438. |
233 | U.S. Trust, 431 U.S. at 24. |
234 | Lipscomb, 269 F.3d at 504; United Gas Corp. v City of Monroe, 109 So.2d 433 (La. 1958) (contract upheld between city and utility, but remains subject to legislature’s police power). |
235 | The Federal Contract Clause jurisprudence provides that an impairment in response to an economic emergency must be a reasonable and specific response to the conditions, justifiable by a significant and legitimate public purpose dealing with a broad, generalized economic problem. Energy Reserves, 459 U.S. at 411; Allied Structural, 438 U.S. at 250; see supra notes 91-92; Treigle v. Acme Homestead Ass’n, 297 U.S. 189 (1936) (Louisiana law that modified the existing withdrawal rights of the members of a building and loan association held invalid under the Federal Contract Clause); W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935) (“W. B. Worthen”); Blaisdell, 290 U.S. at 426. In Treigle and W. B. Worthen, the Supreme Court struck down other laws passed in response to the Great Depression’s economic emergency, contemporaneously to upholding the law in Blaisdell. In W. B. Worthen, the United States Supreme Court reversed the decision of the Arkansas Supreme Court upholding the validity of legislative enactments (accompanied by a legislative declaration of an emergency) which the United States Supreme Court viewed as taking “from the mortgage [securing bonds issued by municipal improvement districts pursuant to state law] the quality of an acceptable investment for a rational investor” by making it much more difficult and time consuming to foreclose upon the collateral posted as security for the mortgage. 295 U.S. at 60. It cannot be known at present what emergency, if any, may exist at the time of a future State action violating the Pledges. For example, Executive Order dated March 13, 2020, issued by the executive secretary of the LPSC (later ratified by orders of the LPSC and expanded to prohibit late fees, LPSC Special Orders 22-2020 and 28-2020) established an emergency suspension of disconnection of customers of LPSC-jurisdictional public utilities for non-payment of service in response to the COVID-19 pandemic. This moratorium on disconnections continued until July 16, 2020. LPSC Order 43-2020, issued July 1, 2020. On the other hand, as the Supreme Court has clarified, “the existence of an emergency and the limited duration of a relief measure … cannot be regarded as essential in every case.” U.S. Trust, 431 U.S. at 23 n.19, quoted in Los Angeles, supra note 91, 10 F.4th at 916 (rejecting Federal Contract Clause claim challenging COVID-19 pandemic eviction moratorium’s restrictions on the grounds for eviction, rent deferment, and elimination of late fees and interest). Compare supra note 29 (emergency exception to Federal Takings Clause) and supra notes 63, 81, and 96 (Federal Contract Clause and emergencies) and Heights Apartments, LLC v. Walz, 30 F.4th 720, 730 (8th Cir. 04/05/2022), rehearing en banc denied, 2022 U.S. App. LEXIS 16863 (emphasizing that challenged executive orders mandating COVID-19 eviction moratorium had no definite termination dates). |
236 | Lipscomb, 269 F.3d at 505, 512 [“[p]urely financial obligations … do not surrender aspects of the State’s sovereignty, and thus are subject to the Contract Clause”). The ability to create financial inducements to encourage investment in the state is a valid exercise, not a surrender, of the State’s police power. See Lipscomb, 269 F.3d at 512 (although “renewable forever” leases of state school lands eventually resulted in nominal rents, State's offer of such leases did not-surrender an essential attribute of State sovereignty but instead served the public interest by bringing in “rental income and encourage[ing] development that allowed the imposition of property taxes for the benefit of schools”); Local Div. 589, Amalgamated Transit Union v. Massachusetts, 666 F.2d 618, 642 (1st Cir. 1981) (per curiam) (describing U.S. Trust as presenting “a paradigm of the type of protection that the Contract Clause was designed to offer — a protection given to those who invested money, time and effort against loss of their investment through explicit repudiation”). The United States Supreme Court has recognized that “[w]hatever the propriety of a State’s binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned.” U.S. Trust, 431 U.S. at 24. See supra notes 106 and 231. As noted by the Supreme Court, “[i]n almost every case, the Court has held a government unit to its contractual obligations when it enters financial or other markets.” Energy Reserves, 459 U.S. at 412 n.14 (citing U.S. Trust, 431 U.S. at 25-28; W. B. Worthen, 295 U.S. 56 (1935); and Murray v. Charleston, 96 U.S. 432 (1878)). In W. B. Worthen, discussed supra note 235, the United States Supreme Court reversed a decision of the Arkansas Supreme Court upholding the validity of legislative enactments affecting bonds mortgages which were accompanied by a legislative “declaration of an emergency, which was stated to endanger the peace, health and safety of a multitude of citizens.” In Murray, the United States Supreme Court reversed a judgment of the Supreme Court of South Carolina upholding an ordinance of the City of Charleston which permitted the City to withhold, as a tax, a portion of the interest that was otherwise payable with respect to bonds issued by the City. This “tax” was held to violate the Federal Contract Clause: “no municipality of a State can, by its own ordinances, under the guise of taxation, relieve itself from performing to the letter all that it has expressly promised to its creditors.” 96 U.S. at 448. |
237 | Stone v. Mississippi, 101 U.S. 814, 820 (1879); Von Hoffman v. City of Quincy, 71 U.S. 535, 542, 553-55 (1866) (rejecting defense of law under reserved powers doctrine that repealed laws in force when bonds were issued that authorized and required the collection of taxes sufficient in amount to meet debt service; finding statutory covenant to exercise municipal taxation power to fund repayment of bonds created an enforceable obligation protected by the Federal Contract Clause; and finding constitutional impairment by also rejecting the use of the characterization of the covenant to increase taxes as a mere remedy and therefore not part of the core contractual bargain). By example, in Liter v. City of Baton Rouge, 245 So.2d 398 (La. 1971), the constitutionality of sales and use taxes by a political subdivision (city) was challenged on the basis that the language of the taxing authority granted to the political subdivision was so plenary and extraordinary as to be equivalent to the surrender and abandonment of the Legislature’s taxing power. The Louisiana Supreme Court held that the grant was a permissible delegation. It was then further urged by the challengers that the statute was unconstitutional as amounting to a surrender of the Legislature’s taxing power because the statute authorized the funding of the sales tax revenues into bonds, and that when they are so funded they cannot be modified or reduced. The statute declared that, when the obligations payable from the sales tax revenues shall have been issued, the statute and the ordinance or resolution imposing the tax shall be irrevocable until such obligations shall have been paid in full and shall not be subject to amendment in any manner which would impair or jeopardize the rights of the holders. It was argued that these provisions amounted to an impermissible surrender of the taxing power. The Louisiana Supreme Court rejected this argument: “We are of the opinion that pledge of taxes for a limited time does not amount to a ‘surrender’ of the taxing power as that term is used in the constitution. Of course, if the irrevocability were unlimited or the period is so long to make it virtually unlimited, then it is conceivable that such an enactment might be held to constitute at least a partial surrender of the taxing power. That situation is, however, not presented here.” Id. at 405. Compare State et rel. Porterie v. Walmsley, 162 So.826, 839 and 864 (La. 1935) (special tax supporting payment of bonds). |
238 | United Gas Pipe Line Company v. LPSC, 164 So.2d 343, 332 (La. 1964). |
239 | SCB, supra note 195, 555 So.2d at 1374. |
240 | Opelousas, supra note 4, 105 So.2d at 38; Entergy Gulf States, Inc. v. LPSC, 730 So.2d 890, 920 (La. 1999). |
241 | Id. (Entergy Gulf) |
242 | See supra notes 18, 132-134. |
243 | See supra note 72. |
244 | Chrysler Corp. v. Kolosso Auto Sales, Inc., 148 F.3d 892, 894 (7th Cir. 1998). |
245 | Lipscomb, 269 F.3d at 504; Chrysler, 148 F.3d at 895. |
246 | Conoco, 520 So.2d at 409. |
247 | See supra note 10. |
248 | Blaisdell, supra note 86, 290 U.S. at 430 (“Every case must be determined on its own circumstances”); Buffalo Teachers Federation v. Tobe, 464 F.3d 362, 373 and 375 (2d Cir. 2006) (Contract Clause cases involve individual inquiries, for no two cases are alike, and Takings Clause analysis requires an intensive ad hoc inquiry into the circumstances of each particular case). |
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S&P Global Ratings, a division of S&P Global Inc. |
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