The Louisiana Homeland Security and Emergency Assistance and Disaster Act, codified at Louisiana Revised Statutes §§ 29:721-739, confers certain emergency powers upon the governor to ensure that the State will be able to deal adequately with emergencies and disasters. In particular, Section 29:724 (D)(1) permits the governor to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business . . . if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.” The Louisiana First Circuit Court of Appeal has discussed the limitations on Louisiana Revised Statute § 29:724, stating “[T]here is no provision in La. R.S. 29:724 that permits the governor to enact substantive law.” Louisiana Hosp. Ass’n v. State, 2013-0579, pp. 12-14 (La. App. 1 Cir. 12/30/14); 168 So. 3d 676, 686–87, writ denied, 2015-0215 (La. 5/1/15); 169 So. 3d 372. Thus, some of the Executive Orders recently issued by Governor Edwards may be susceptible to challenge as exceeding his authority under Louisiana Revised Statute § 29:724.
On August 15, 2016, Governor Edwards issued Executive Order JBE 2016-53 in response to the Great Flood of 2016. The Executive Order suspended “all deadlines applicable to legal proceedings, including prescription and preemption, in all Louisiana state courts, administrative agencies and boards . . . .” Governor Edwards amended Executive Order JBE 2016-53 by issuing Executive Order JBE 2016-57, which provides, in part:
Liberative prescription and preemptive periods continue to be suspended throughout the State until Friday, September 9, 2016. Deadlines in legal proceedings in courts, administrative agencies and boards affected by the flooding event, defined as the following parishes: Acadia, Ascension, Assumption, Avoyelles, Cameron, East Baton Rouge, East Feliciana, Evangeline, Iberia, Iberville, Jefferson Davis, Lafayette, Livingston, Pointe Coupee, St. Charles, St. Helena, St. James, St. John the Baptist, St. Landry, St. Martin, St. Tammany, Tangipahoa, Vermilion, Washington, West Baton Rouge and West Feliciana, continue to be suspended until Friday, September 9, 2016…” JBE 2016-57 further provided that “all other deadlines in legal proceedings provided for in Executive Order Number JBE 2016-53 in all courts, administrative agencies, and boards shall end Friday August 19, 2016.
Governor Edwards’ Executive Orders JBE 2016-53 and JBE 2016-57 are comparable to Governor Blanco’s Executive Orders KBB 2005-32, KBB 2005-48, and KBB 2005-67. In response to Hurricane Katrina, Governor Blanco issued Executive Order KBB 2005-32 on September 6, 2005, suspending “all deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts, administrative agencies, and boards, and applied retroactively from Monday, August 29, 2005 [the date Hurricane Katrina made landfall], through Sunday, September 25, 2005.” The September 25, 2005 date was extended for an additional 30 days pursuant to Executive Order KBB 2005-48, issued September 23, 2005. In October of 2005, Governor Blanco responded to Hurricane Rita by issuing Executive Order KBB 2005-67, signed on October 19, 2005, which suspended liberative prescription and peremptive periods until Friday, November 25, 2005.
Before Governor Blanco’s authority could be challenged, the legislature approved, ratified, and confirmed Executive Orders KBB 2005-32, 2005-48, and 2005-67 in Louisiana Revised Statute § 9:5821. The legislature further enacted a Louisiana law that expressly extended the time for filing an insurance claim to September 1, 2007, for Hurricane Katrina and to October 1, 2007, for Hurricane Rita. La. Rev. Stat. § 22:1894. The Louisiana Supreme Court upheld the constitutionality of the enactment of these laws, determining that the laws did not violate the state and federal contract clauses, the federal Supremacy Clause, or insurance companies’ procedural due process rights. State v. All Prop. & Cas. Ins. Carriers Authorized & Licensed To Do Bus. In State, 2006-2030, p. 3 (La. 8/25/06); 937 So. 2d 313, 317. The Court did not discuss the issue of whether Governor Blanco exceeded the authority given to the governor under the statute.
Although the extent of Governor Edwards’ authority pursuant to Louisiana Revised Statute §§ 29:721-739 has not yet been challenged, the legislature has not approved and ratified Executive Orders JBE 2016-53 and JBE 2016-57 as the legislature did for Governor Blanco’s Executive Orders. This means that Governor Edwards’ authority to issue Executive Orders JBE 2016-53 and JBE 2016-57 remains susceptible to challenge.
Under Louisiana Law, most insurance contracts cannot limit the time for the insurer to file a claim against the insurer to a period shorter than one year. La. Rev. Stat. § 22:868(B). Louisiana citizens impacted by Hurricane Katrina and Hurricane Rita had one year from the date of each storm to file insurance claims against their insurer, which would have expired on August 29, 2006, for Hurricane Katrina and September 25, 2006, for Hurricane Rita. However, under Governor Blanco’s Executive Orders, the deadline to file claims against insurance companies would have extended beyond the one-year statutory allowance, which may have exceeded Governor Blanco’s authority under Louisiana Revised Statutes §§ 29:721-739, if the legislature had not approved and ratified her executive orders.
Similarly, Louisiana citizens impacted by the Great Flood of 2016 would have had one year from the date of the flood to file insurance claims against their insurers, which would expire at various times between August 12, 2017, and August 15, 2017. Governor Edwards’ extension of these deadlines may be unauthorized under Louisiana Revised Statutes §§ 29:721-739, if a court finds this action to be an attempt to exercise legislative power.
Executive Orders JBE 2016-53 and JBE 2016-57 are distinguishable from Executive Order BJ 2012–16 issued by Governor Jindal on August 29, 2012, in response to Hurricane Isaac. An explanation of Executive Order BJ 2012-16 will prove useful in understanding the First Circuit Court of Appeal’s determination in Louisiana Hosp. Ass’n v. State that “there is no provision in La. R.S. 29:724 that permits the governor to enact substantive law.” Executive Order BJ 2012–16 was issued to provide for the “LIMITED TRANSFER OF AUTHORITY TO COMMISSIONER OF INSURANCE FOR EMERGENCY RULES FOR HURRICANE ISAAC.” The Order, issued in response to Hurricane Isaac, gave the Insurance Commissioner the Governor’s powers under Louisiana Revised Statute § 29:724. The Insurance Commissioner then implemented Emergency Rule 26, which prohibited out-of-network health care providers from sending written or electronic communication to insureds to attempt to collect any amount that was not fully paid by the insured or the health insurance issuer.
The First Circuit Court of Appeal held that Governor Jindal, and by extension the Insurance Commissioner, did not have authority to issue this emergency rule. Louisiana Hosp. Ass’n v. State, 2013-0579, pp. 13-14 (La. App. 1 Cir. 12/30/14); 168 So. 3d 676, 686–87, writ denied, 2015-0215 (La. 5/1/15); 169 So. 3d 372. The First Circuit explained that the statutory scheme in Louisiana Revised Statutes § 29:721 et seq. was enacted by the legislature “to enable the governor and parish presidents to declare a state of emergency for the stated purposes of, among other things, preserving the lives and property of the state . . . .” The legislature did not intend to convey legislative authority upon the governor during a state of emergency. Although Section 29:724 (D)(1) permits the governor to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business . . . if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency,” there is no provision in Louisiana Revised Statute § 29:724 that permits the governor to enact substantive law. The court found that enacting Rule 26 was an exercise of legislative power, and was therefore inappropriate.
Governor Edwards’ Executive Orders JBE 2016-53 and JBE 2016-57 could be interpreted as an unauthorized exercise of legislative power because it appears to conflict with Louisiana law governing insurance contracts in Louisiana Revised Statute § 22:868(B) and has not been approved and ratified by the legislature. If the legislature intended give the governor the authority to extend legal deadlines, Louisiana Revised Statute § 22:1894 should not have been limited to insurance claims for Hurricane Katrina and Hurricane Rita. Instead, the legislature could enact a law that expressly allows the governor to extend the prescriptive and peremptive periods with ascertainable standards. For example, the legislature could require that the time period for the limitation be equivalent to the amount of time the courts were closed as a result of the emergency or disaster. This standard would give consistency to the executive orders issued by governors regarding legal deadlines in a time of emergency or disaster without leaving the extensions open to challenges as unauthorized exercises of legislative power.