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Legislative Powers and Rules of Procedure:
Brinkhaus v. Senate of the State of Louisiana
By:
Jerry G. Jones
Senior Attorney, Natural Resources Committee
House Legislative Services
Louisiana House of Representatives
Volume 3, Number 1 Spring 1997
© Journal of the American Society of Legislative Clerks and Secretaries
 ASLCS Home Page
Can legislators seek declaratory judgments from courts to overturn procedural rulings of legislative officers?
In a 1995 Louisiana case, Brinkhaus v. Senate of the State of Louisiana1, the answer of the state First Circuit Court of Appeal was no. The constitutional doctrine of separation of powers and adoption by the legislature of procedural rules, including Mason's Manual of Legislative Procedure, prevented courts from even considering the issues raised in the lawsuit.
Background
Brinkhaus arose from a 1993 constitutional amendment changing the procedure for annual regular sessions in Louisiana.2 Before 1993, annual regular sessions were general in nature, except that no measure levying a new tax or increasing an existing tax could be introduced or enacted during a regular session in an odd-numbered year.3
After the 1993 constitutional amendment, regular sessions in Louisiana during odd-numbered years became general in nature, except that no measure can be introduced or enacted (1) levying or authorizing a new tax by the state or by any statewide political subdivision whose boundaries are coterminous with the state, (2) increasing an existing tax by the state or by any statewide political subdivision whose boundaries are coterminous with the state, or (3) legislating "with regard to" tax exemptions, exclusions, deductions, or credits.4
During even-numbered years, regular sessions in Louisiana are now restricted to the consideration of legislation providing for appropriations, implementation of a capital budget, levying or authorizing a new tax, increasing an existing tax, or legislating "with regard to" tax exemptions, exclusions, deductions, reductions, repeal, or credits, or issuing bonds.5
Several weeks before the 1995 Regular Session, the President of the Louisiana Senate in a letter to several senators advised them that he would not allow twenty-one bills prefiled by them to be introduced and referred to committee when the session began. The reason was that he had reviewed their prefiled bills and determined them to be outside the scope of proper regular session subject matter for an odd-numbered year.
In response, two state senators filed suit against the Senate and President of the Senate ten days before the beginning of the 1995 regular session. The suit was for a declaratory judgment from the courts interpreting the new 1993 language in the constitution on regular session subject matter and ascertaining whether the prefiled legislation at issue could be properly introduced.
With the regular session beginning on March 27, just a few days away, movement in the case was swift. The suit was filed on March 17 and a hearing in the trial court was held four days later, on March 21.
At the hearing, both the plaintiffs and defendants agreed that the plaintiffs had standing to file the declaratory judgment action and that a declaratory judgment was appropriate in the case because it presented an actual "controversy" between the parties.6 The trial court agreed.
The trial court at the hearing reviewed the twenty-one prefiled bills at issue and concluded that twenty out of the twenty-one bills were in fact outside the scope of proper session subject matter and could not be introduced. Judgment of the trial court was signed on March 23.
With the regular session now six days away, both sides immediately appealed to the state First Circuit Court of Appeal and sought expedited hearing. The First Circuit granted the request.
Oral argument before the full five-judge panel of the court was scheduled and held after the regular session had begun. At oral argument, the court was advised that the bills had in fact been introduced but not referred to committee. The opinion of the appellate court was rendered on April 18. Only a month had passed since the case was first filed.
Ruling
The opinion of the five-judge appellate panel was unanimous. Due to separation of powers under the Louisiana Constitution, the courts lacked subject matter jurisdiction of this matter. The consent of all parties to the proceeding could not confer jurisdiction over a matter not within the province of the court's powers. The judgment of the trial court was reversed and the plaintiffs' petition was dismissed.
Reasons
The court first looked to Article II of the Louisiana Constitution, which divides the governmental powers of the state into three separate branches - legislative, executive, and judicial - and further states that, except as otherwise provided by the constitution, "no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others."7
Next, the court examined Article III, Section 7(A) of the state constitution concerning powers of the legislative branch and pointed out that the language of 7(A) includes the statement that each house "shall determine its rules of procedure, not inconsistent with the provisions of this constitution."8
Examining the rules of procedure adopted by the legislature, the court stated:
The Senate has adopted a comprehensive set of rules under which it operates and has adopted by reference Mason's Manual of Legislative Procedure (1989) as its guide where its own rules do not provide an answer. Rule 15.3 of the Rules of Order of the Louisiana Senate provides that "[o]n any question of order and parliamentary practice, when these rules are silent or inexplicit, Mason's Manual of Legislative Procedure shall be considered as authority." We note that contained in the Rules of Order of the Louisiana Senate as well as in Mason's Manual of Legislative Procedure are found appropriate legislative parliamentary motions which can be used when a presiding officer is reluctant or refuses to allow the introduction of legislation or the referral thereof to committee. (footnotes omitted).9
Finally, the court examined the suit for declaratory judgment and determined that, although styled as seeking an interpretation of new constitutional language, the actual purpose of the suit was "to correct an alleged erroneous procedural ruling of the President of the Senate."10
The court noted:
The legislative branch has the constitutional authority to adopt rules for the operation of each house of the legislature. The Senate has adopted rules of procedure including a means of appealing adverse rulings. For the judicial branch to entertain such a suit, the judicial branch would be exercising a power belonging to the legislative branch of state government, and this we cannot and will not do.11
The appellate court distinguished this case from other cases in which courts had interpreted constitutional provisions by pointing out that in those cases the legislation at issue had already been enacted at the time it was challenged on constitutional grounds. To issue an opinion on the validity of legislation during the legislative process would raise numerous questions, none of which could be definitively answered, nor could such an opinion settle or decide future similar adverse rulings by legislative officers.
The Court concluded:
If we entertain such litigation as presently before us, the judicial branch will find itself involved in the daily operations of the legislative branch settling "controversies" between the presiding officers of either house and the members thereof as well as controversies between legislators themselves. We would end up as a "super" senate or a "super" house of representatives, and the judicial branch would be in violation of Art. III, 2 and 7(A) of the Louisiana Constitution. We are convinced that under the Louisiana Constitution this matter properly belongs in the legislative branch of government. (footnotes omitted).12
Effects
The effects of Brinkhaus seem to be fourfold.
First, the interpretation of legislative rules of procedure is itself a legislative power not subject to exercise by another branch of government. The issue was not one of lack of justiciable controversy or prohibited advisory opinion but the simple fact that the court lacked the power to consider this matter at all.
Absent a showing that a rule, rather than a ruling, is constitutionally defective, Brinkhaus indicates that the process of rule interpretation and appeal is a strictly internal legislative matter. Courts will not function as a last resort for legislators because courts generally do not have the power to apply and interpret legislative rules of procedure, even when the determinations under such rules involve questions of interpretation of law.
Second, it was important authority for the court's "hands-off" approach that the legislature had already adopted specific written rules, including Mason's Manual of Legislative Procedure, setting forth methods to appeal or override the actions of presiding officers concerning the introduction of legislation. The preexistence of an internal procedural mechanism for handling this matter supported the conclusion that this was an issue for the legislature and not the courts.
Third, implicit in the court's conclusion is the concept that enactment of a particular measure is a demarcation line between legislative and judicial powers. Brinkhaus indicates that both separation of powers and judicial economy are served by having questions of interpretation under legislative rules of procedure be resolved solely through an internal process prior to enactment.
After enactment of a particular measure, the courts have the power to determine its constitutionality. Since Louisiana does not follow the "enrolled bill rule" such determinations may include whether there has been compliance with constitutional requirements for the passage of legislation, including proper session subject matter, notice and prohibitions concerning local and special bills, title-object conformity, and other requirements. Outside of constitutional requirements, the failure of the legislature to follow its own rules of procedure is not sufficient to void legislation.
Fourth, the Louisiana Constitution states that the regular session subject matter restrictions prohibit the "introduction or enactment" of certain matters. But if the demarcation line in separation of powers is enactment, then the power of legislative officers to deny the introduction of legislation based on an interpretation of law is apparently not subject to court scrutiny.13 If an attempt to override the ruling fails, the legislation will not be introduced. No introduction means no enactment and no enactment means there is nothing for the court to review.
There are also unresolved questions. Are legislative officers bound at the time of introduction by the same presumptions of constitutionality and guidelines for interpretation and construction of legislation that courts must give to legislation after enactment? If not, why not, since the officer at that time is acting as "judge" of whether the legislation is in constitutional compliance. If such standards are not applicable, then what standards are? If legislative officers have the power to deny the introduction of legislation on constitutional grounds, subject only to legislative override, should the standards by which they make such determinations be set forth in the legislative rules of procedure?
It should also be noted that, although reference was made in the opinion to potential use of Mason's Manual to resolve internal legislative disputes, the court did not discuss the language in Section 578(6) of the Manual stating, "It is not the right of the presiding officer to rule upon the constitutionality of bills as that authority belongs to the house."14
Conclusion
Brinkhaus strongly reaffirms the power of the legislature as ultimate arbiter in choosing what legislation it will consider - and not consider - in accordance with internal rules of procedure not inconsistent with constitutional provisions. It also reaffirms the limited role of the courts in the legislative process as being basically confined to postenactment scrutiny of particular measures.
Endnotes
1 655 So.2d 394 (La. App. 1 Cir. 1995). Writs were not sought to the state Supreme Court.
2 Acts 1993 No. 1041, approved October 16, 1993, effective November 17, 1993. Constitutional amendments are joint resolutions in Louisiana but are processed as bills and given bill and act numbers.
3 La. Const. 1974, art. III, Sec. 2(A), prior to the 1993 amendment.
4 La. Const. 1974, art. III, Sec. 2(A), after the 1993 amendment.
5 Id.
6 Articles 1871-1883 of the Louisiana Code of Civil Procedure set forth the requirements for a
declaratory judgment action. Advisory opinions are prohibited by Louisiana courts and the articles require the existence of a "justiciable controversy" between the parties.
7 La. Const. 1974, Art. II, Sections 1 and 2 state:
Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.
8 La. Const. 1974, Art. III, Sec. 7(A) provides:
Section 7(A). Judging Qualifications and Elections; Procedural Rules; Discipline; Expulsion. Each house shall be the judge of the qualifications and elections of its members; shall determine its rules of procedure, not inconsistent with the provisions of this constitution; may punish its members for disorderly conduct or contempt; and may expel a member with concurrence of two-thirds of its elected members. Expulsion creates a vacancy in the office.
9 Brinkhaus, et al, v. Senate of the State of Louisiana, et al, 655 So.2d 394 (La. App. 1 Cir. 1995), at pages 396-397. The court further stated at page 397:
We venture not to suggest the motions available, because to do so would interject this court into the business of the Senate in violation of the separations of powers provision of the constitution. However, the failure to utilize procedures available is not dispositive of the issue in this proceeding, i.e., lack of subject matter jurisdiction.
10 Brinkhaus, at page 397.
11 Id. See also, Mason's Manual of Legislative Procedure (NCSL, 1989), Sections 3 and 71-73).
12 Brinkhaus, pages 397-398.
13 The issue was not discussed in Brinkhaus of whether the actions of officers in denying the introduction of legislation based on conclusions of unconstitutional subject matter violates separation of powers, i.e., infringes upon the court's function as arbiter of constitutionality. La. Const. 1974, Art. III, 7(A) states that each house "shall determine its rules of procedure, not inconsistent with the provisions of this constitution." (emphasis added).
14 Mason's Manual of Legislative Procedure (NCSL, 1989), Section 578(6). See also, Section 72(2), stating in part, "It is for the courts to decide whether or not there has been compliance with constitutional provisions and whether a bill of the legislature has become a law." But see, Section 3(4), stating, "The provision of the constitution that each house shall have the power to determine the rules of its proceedings is not restricted to the proceedings of the body in ordinary legislative matters, but extends to determination of propriety and effect of any action taken by the body in the exercise of any power, in the transaction of any business or performance of any duty conferred upon it by the constitution, as in proposing amendments to the constitution."
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National Conference of State Legislatures
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