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  • Writer's pictureMary Watson Smith

Constitutional Challenges: What Every Louisiana Litigator Needs to Know

Updated: Apr 27, 2021

Lawyers throw around the word “unconstitutional” a lot. It’s often the argument litigators keep in their back pockets if things start to go south during a hearing. But, what if you actually want to make a constitutional challenge? How do you even do that? I was working on a couple of cases recently that brought to mind some very common missteps I have witnessed litigators make when they set out to challenge the constitutionality of a Louisiana law. Here’s a list of mistakes you won’t make because now you know better! You're welcome!

(1) The unconstitutionality of the law “must be specially pleaded and the grounds for the claim particularized.” Challenging unconstitutionality is not something you can just do on the fly during oral arguments. Louisiana courts require that any such challenges be specially pled so “that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue.” Vallo v. Gayle Oil Co., Inc. 94-1238 (La. 11/30/94), 646 So.2d 859, 865.

(2) Decide what kind of challenge you want to make. Most litigators jump right over this step, but it is critical. Are you urging a facial challenge to the law? Or are you making an as-applied challenge? Whether the State has a compelling interest to justify the law at all is a very different inquiry than whether the State has a compelling interest in applying the law under a particular set of facts. With that said, facial challenges are exceedingly difficult to win. As the U.S. Supreme Court has explained, “a plaintiff can only succeed in a facial challenge by ‘establish[ing] that no set of circumstances exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications. Id., at 745, 107 S.Ct. 2095. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ ” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). Before you go to court, figure out the scope of your challenge so that you can focus your research, your arguments, and the court's attention.

(3) Determine the degree of scrutiny associated with whatever right the law in question allegedly violates. Strict scrutiny? Intermediate scrutiny? Rational basis? I remember doing a little dance in my chair late one night when I was working on a dissent at the Supreme Court because I found authority for the argument that the right to privacy was afforded strict scrutiny. See Hondroulis v. Schuhmacher, 553 So.2d 398, 415 (La. 1988). The parties were all arguing that the ordinance at issue was subject to the rational basis test (i.e., generally, an ordinance is valid if it bears a rational relationship to the health, safety and welfare of the public, see Folsom Road Civic Ass'n v. Parish of St. Tammany, 407 So.2d 1219, 1222 (La.1981). If the constitutional challenger had just done a little bit of research, the case easily could have come out the other way...but no one made the argument. The degree of scrutiny can make all the difference!

(4) If possible, challenge the law under BOTH the U.S. Constitution and the Louisiana State Constitution. This is a big one! Federalism is not dead. When you challenge the constitutionality of a law, you should be challenging it under the federal and the state constitution. Some state constitutional rights are coextensive with rights under the federal constitution. But, the Louisiana constitution provides greater protections in some areas—like the right to privacy. See, e.g., State v. Hernandez, 410 So.2d 1381, 1385 (La.1982) (“This constitutional declaration of right is not a duplicate of the Fourth Amendment or merely coextensive with it; it is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.”). Don’t leave any constitutional protections on the table!

(5) Don’t forget to send notices to the Attorney General! If you want your constitutional challenge to get off the ground, you need to serve the AG. Under La. R.S. 49:257(C), “the attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.” The Louisiana Supreme Court has interpreted this language to mean that the AG must be served when you attack the constitutionality of a law in a petition for declaratory relief and, in all other proceedings in which the constitutionality of a law is assailed, the AG should be served. See Vallo, 646 So.2d at 864. The AG very well may decide not to participate in the proceedings but, if a law gets declared unconstitutional and you forgot to serve the AG, you're probably going to be facing a remand from the Supreme Court.

For more on the proper procedure for challenging the constitutionality of a Louisiana law, take a look at State v. Schoening, 00-0903 (La. 10/17/00), 770 So.2d 762. If you want some advice on your constitutional challenge, we’re here to help. With a combined seventeen years of Supreme Court clerking experience, we’ve seen an awful lot, and we would love to offer you the benefit of our extensive knowledge!

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