By Philip Young

Introduction 

Joseph Heller’s classic novel Catch-22 centers around Air Force pilots during World War II.[1] Throughout the book, various circumstances force the characters to make seemingly impossible choices.[2] The central dilemma the soldiers encounter is choosing between following orders and their instinctive desire for self-preservation.[3] In response to their well‑founded fears, pilots attempt to avoid future missions by claiming to be mentally insane.[4] To curtail cautious but otherwise capable soldiers from evading duty, the military implements the Catch-22 rule.[5] Although the rule is not revealed explicitly, Heller provides a descriptive definition, stating:

There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. [If a pilot] was crazy [he] could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. [A pilot] would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to, but if he didn’t want to he was sane and had to.[6]

In popular culture, “a Catch-22” has become an eponym for similar situations. Merriam-Webster defines it as “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.”^[7] While these circumstances are not uncommon, the Louisiana legislature recently placed public school administrators in a similar no-win situation.[8]

In recent years, LGBTQ+ rights have been the subject of intense legal and political discussions.[9] On November 18, 2003, Massachusetts became the first state to legalize same-sex marriage.[10] This decision acted as a key development in the fight for LGBTQ+ rights and contributed to an already shifting cultural momentum.[11] This momentum reached a crescendo in the United States Supreme Court’s 2015 landmark decision Obergefell v. Hodges, which legalized same-sex marriage on a federal level.[12]

In the same year, the Equal Employment Opportunity Commission (EEOC) issued a seemingly prophetic decision.[13] In Lusardi v. Department of the Army, the United States Army hired a transgender woman as a civilian employee.[14] The employee agreed to use a single‑occupant, gender‑neutral bathroom.[15] On multiple occasions, however, the single-occupant restroom was inaccessible.[16] As a result, the employee used the common female restroom.[17] After doing so, she was confronted by a supervisor who told her “that she was making people uncomfortable, and that she had to use the executive restroom until she could show proof of having undergone the ‘final surgery.’’’[18] This ultimately caused the employee to file a complaint with the EEOC.[19] In turn, the EEOC determined that an employer may not deny a transgender employee access to a restroom that comports with the employee’s gender identity.[20]

Five years after Obergefell and Lusardi, the Supreme Court extended protections to other members of the LGBTQ+ community.[21] In Bostock v. Clayton County, the Court held that an employer who renders a negative employment consequence on a transgender employee because of his or her transgender status discriminates on the basis of sex.[22] Under the Civil Rights Act of 1964, this discrimination is unlawful.[23]

In stark contrast to the federal government’s unabashed social progressivism, Louisiana’s legislature enacted competing laws in its 2024 session.[24] On June 3, 2024, Louisiana Governor Jeff Landry signed House Bill 608, the Women’s Safety and Protection Act (WSPA).[25] The WSPA’s opening statute states that “no governmental agency . . . shall prohibit distinctions between the sexes with respect to . . . accommodation[s] where biology, safety, or privacy are implicated and . . . are substantially related to the important government interest of protecting the health, safety, and privacy of individuals.”[26] Further, the WSPA states that it does not prohibit institutions from establishing single‑occupant restrooms that are not designated by sex.[27] Two statutes later, however, the WSPA states:

A public school shall designate each multi-occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.
B. (1) A restroom or changing room within a public school that is designated for males or females shall be used only by members of that same sex. No individual shall enter a restroom or changing room that is designated for one sex unless the individual is a member of that sex.
(2) The public school shall take reasonable steps to provide individuals with privacy in restrooms and changing rooms from members of the opposite sex.[28]

The WSPA’s mandatory language and insistence on segregating restrooms based on users’ biology conflicts with the federal government’s articulated policies.[29] As a result, it places Louisiana public school administrators in an impossible situation.

I. Federal Policy 

Throughout recent years, LGBTQ+ activism has steadily expanded its influence in the cultural mainstream. During this time, activists have routinely asked the government to establish or recognize LGBTQ+ individuals’ rights.[30] Although the government’s response has varied among jurisdictions, it has regularly extended protections to LGBTQ+ individuals at the federal level.[31]

A. Before Bostock: Split Circuits

In 2015, the EEOC decided that a federal agency committed sex discrimination by denying a transgender employee equal access to a common restroom corresponding to her gender identity. In Lusardi, the United States Army hired the complainant, a transgender woman, as a civilian employee.^[33] In a meeting with the complainant and two supervising officers, the three agreed that she would use a single‑occupant restroom until the complainant had undergone an “undefined surgery.”^[34] However, on three occasions, the complainant used the common female restroom.^[35] After one such instance, an officer confronted her, told her that she was making people uncomfortable, and instructed her to use the single‑occupant restroom until showing proof of having undergone the “final surgery.”^[36] The complainant subsequently filed a charge with the EEOC.^[37] She argued that her employer violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against her on the basis of sex.^[38] The Army contended that no law required it to allow transgender employees to use restrooms consistent with their gender identity.^[39] Further, the Army asserted that it lacked clarity on whether the complainant’s “inability to use a restroom with equivalent amenities constitute[d] an adverse action.”^[40] Ultimately, the EEOC determined that the Army subjected the complainant to disparate treatment on the basis of sex and created a hostile work environment.^[41] As a result, the EEOC held that the Army’s actions violated Title VII.^[42]

In the same year that the Supreme Court decided Lusardi, both the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) issued guidance regarding restroom access for transgender workers.^[43] In its guidance, the DOL incorporated the Office of Personnel Management’s (OPM) policy, which states that federal agencies should allow an employee “who has begun living and working full-time in the gender consistent with the employee’s gender identity . . . to use the restrooms . . . consistent [with the same].”^[44] However, the DOL did not comment on private employers’ duties.

Similarly, OSHA’s guidance also states that employers should allow transgender employees to use restrooms that correspond to their gender identity.^[45] Further, it states that employers should provide additional discretionary restroom options for transgender employees, including gender‑neutral, single‑occupant, and multiple‑occupant restrooms.^[46] Although no employer can require an employee to use a segregated facility because of their gender identity or transgender status under this guidance, employees may freely choose to do so.^[47] The guidance also notes that employers should not ask employees to provide any medical or legal documentation of their gender identity to have access to these facilities.^[48] While OSHA’s best practices seem to increase employers’ duties, it also expressly states that it creates no new legal obligations for employers.^[49]

Conversely, in 2019, the United States Fifth Circuit Court of Appeal reiterated that Title VII does not prohibit discrimination on the basis of transgender status.^[50] In Wittmer v. Phillips 66 Co., the Phillips 66 Company (Phillips 66) extended an offer of employment to a transgender woman but later retracted it because of discrepancies in her background check.^[51] The applicant subsequently filed suit and argued that Phillips 66 discriminated against her on the basis of her transgender status.^[52] In its analysis, the Fifth Circuit recognized that three of its sister circuits had recently determined that Title VII prohibits transgender discrimination.^[53] Instead of adopting this stance, however, the court stated that its own precedent did not prohibit transgender discrimination.^[54] Consequently, employers could discriminate based on transgender status within the Fifth Circuit.^[55]

B. After Bostock: The Circuit Split Settles

An employer who discriminates against an employee for traits or actions that it would not have questioned if the employee was a different sex violates Title VII.^[56] In Bostock, a biologically male employee with gender dysphoria informed her employer that she planned to live and work as a female.^[57] As a result, her employer, R.G. & G.R. Harris Funeral Homes, fired her.^[58] She subsequently filed suit alleging Title VII violations.^[59] After carefully examining Title VII’s words and intent and considering relevant precedent, the Court ultimately stated that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”^[60] The Court held that “an employer who intentionally penalizes an employee for being homosexual or transgender . . . violates Title VII.”^[61] Therefore, under Bostock, employers may not treat transgender employees differently based on their sexual identity.^[62] As a result, the Supreme Court’s decision superseded previous case law that held the contrary, including Wittmer.

II. The WSPA and Public School Employees

In Bostock, the Supreme Court made it clear that employers who discriminate against employees based on their transgender status violate the Civil Rights Act of 1964.[63] Federal employment discrimination policy mandates that employers grant transgender employees access to restrooms that correspond with their gender identity.[64] Certain employers may find it difficult to comply, however, given Louisiana’s recent legislative changes.[65]

The WSPA, passed in the 2024 legislative session, states that Louisiana public schools “shall designate each multi‑occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.”^[66] In passing the WSPA, the state legislature asserted that it proffered the bill for women’s safety and well‑being.[67] By prohibiting men in women’s public school restrooms, the state legislature ostensibly contends that women are safer.[68] Louisiana is home to approximately 1,300 public schools.[69] Since this new law applies to all of them, every school, from LSU, which enrolls over 30,000 students, to Bunkie Elementary, which enrolls approximately 300 students, must comply. When considered from an employment perspective, however, the WSPA may force some schools into unlawful action.[71]

When a transgender individual applies for employment with a Louisiana public school, Bostock indicates that any negative employment action taken against the employee on the basis of his or her transgender status violates Title VII.[72] Examples of negative employment actions include, among others, the school’s failure to hire the employee, the employee’s termination, or the school’s refusal to provide access to restroom facilities that correspond with the employee’s sexual identity.[73] While schools can likely implement customary and familiar safeguards against transgender discrimination in most circumstances, given the recent legislative changes, restroom access could present a difficult situation for some Louisiana public schools.

It is impossible to consider the various restroom facilities at every Louisiana public school. At smaller schools, there may only be single‑occupant restrooms. Others may have multiple‑occupant restrooms for the students and single‑occupant restrooms for the faculty and staff. Still others may have only multiple‑occupant restrooms that everyone uses.

The WSPA requires schools to designate these multiple-occupant restrooms for use by individuals of one sex and “[n]o individual shall enter a restroom . . . unless the individual is a member of that sex.”[74] The legislature’s use of the mandatory verb “shall” indicates that compliance is not optional.[75] Further, the statute requires schools to segregate users according to their sex, not gender.[76] Although not expressly stated, the statute seemingly acknowledges a difference between gender and sex.[77] The statute would have permitted transgender individuals to use the restrooms that correspond to their gender identity if the legislature required restrooms to be designated according to gender. In this case, however, the statute would arguably have little to no effect. Instead, the WSPA mandates schools to designate restrooms according to sex.[78] In doing so, the legislature refers to users’ biological and anatomical makeup.[79] As a result, the WSPA requires public schools to deny restroom access to anyone who does not belong to the designated “sex,” placing public schools with transgender employees in a difficult situation.[80]

On the one hand, Louisiana schools may choose to abide by the WSPA. In doing so, the schools would designate multiple‑occupancy restrooms for use by either males or females and deny access to individuals of the other sex.[81] Since transgender individuals’ biological identity and gender identity do not match, the statute would require Louisiana public schools to deny a transgender employee access to the restroom that comports with his or her gender identity.[82] Not only would this directly contradict federal policy, but it would violate Title VII.[83] As a result, employees could bring an EEOC complaint or employment discrimination claim against the school.[84]

On the other hand, public schools may choose to comply with federal law and permit a transgender employee to use the multiple‑occupancy restroom that corresponds to his or her gender identity.[85] This action, however, would conflict with the WSPA because it specifically mandates that public schools segregate users based on biological sex.[86] Since the WSPA states that an individual may bring a claim under the statute and receive injunctive relief, actual damages, and attorney’s fees, public schools would likely face similar exposure to litigation under these circumstances.

Conclusion

In recent years, the LGBTQ+ community has successfully garnered increased protections at the federal level. Federal policy clearly dictates that transgender individuals should be permitted to use a restroom that comports with their gender identity. At the same time, the WSPA aims to exclude biological men from women’s restrooms to benefit women’s health and safety. After signing the WSPA, Louisiana’s Governor Jeff Landry commented:

The attack on women that we have seen taking place across our country has no place in the state of Louisiana. I was proud to sign House Bill 608 which protects women’s safety and reinforces the very definition of what it means to be a woman. Enough is enough. Louisiana will not allow biological men to take advantage of opportunities for women. We want women across the country to know that your privacy, safety, and opportunities are valued and will always be protected in Louisiana.^[87]

While the governor’s comments may be polarizing, the intersection of transgender and women’s rights highlights an intriguing legal and political crossroads. In any case, by passing the WSPA, Louisiana’s state government may have made it impossible for some public schools to comply with both federal and state law. As a result, some schools may face increased litigation regardless of their path forward.

 

[1] Joseph Heller, Catch-22 (1961).

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 56.

[6] Id.

[7] Catch-22, Merriam-Webster (11th ed. 2024).

[8] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), and Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020), with La. Rev. Stat. § 9:62.

[9] See generally Geoff Mulvihill, Things to Know about Developments Impacting LGBTQ+ Rights Across the US, APNews (Mar. 15, 2024, 2:21 PM), https://apnews.com/article/lgbtq-rights-dont-say-gay-licenses-d0bf9d2f314ec6f28f2189795ea2d56c [https://perma.cc/LKD7-PMN2].

[10] See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (2003); Morning Edition, 20 Years Ago Massachusetts Became the First State to Allow Same-Sex Marriage, NPR, at 00:01 (May 17, 2024), https://www-s4.npr.org/2024/05/17/1252012776/20-years-ago-massachusetts-became-the-first-state-to-allow-same-sex-marriage[https://perma.cc/TW72-PEUR].

[11] See generally Yvonne Abraham, Gays Seek Right to Marry Mass. Lawsuit Goes Beyond Civil Unions, Bos. Globe (Apr. 12, 2001), https://web.archive.org/web/20160213222452/https://www.highbeam.com/doc/1P2-8646465.html [https://perma.cc/3UYQ-45Y8].

[12] Obergefell v. Hodges, 576 U.S. 644 (2015).

[13] Lusardi, 2015 WL 1607756.

[14] Id. at *1.

[15] Id. at *2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at *18.

[21] See Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020).

[22] Id. at 683.

[23] Id. at 651–52.

[24] La. Rev. Stat. § 9:60–63.

[25] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].

[26] La. Rev. Stat. § 9:60.

[27] Id.

[28] Id. § 9:62.

[29] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), with Bostock v. Clayton Cnty., 590 U.S. 644 (2020), and Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [https://perma.cc/W5L5-R73X].

[30] See Bostock, 590 U.S. at 654.

[31] See id. at 649–50.

[32] Lusardi, 2015 WL 1607756. The EEOC is a federal agency that enforces federal employment discrimination laws. Overview, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/overview[https://perma.cc/82FL-EFDZ]. Although it is multi-faceted, the agency investigates employment discrimination complaints and renders administrative law decisions. Id. These decisions are persuasive authority to the judiciary. The EEOC may also choose to file suit on an employee’s behalf and represent the employee throughout the claim. Id.

[33] Lusardi, 2015 WL 1607756, at *1.

[34] Id. at *2.

[35] Id.

[36] Id.

[37] Id. at *1.

[38] Id. at *5.

[39] Id.

[40] Id.

[41] Id. at *13.

[42] Id. at *10.

[43]Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [hereinafter Policies on Gender Identity] [https://perma.cc/W5L5-R73X]; Occupational Safety & Health Admin., A Guide to Restroom Access for Transgender Workers (2015), https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf [hereinafter A Guide to Restroom Access] [https://perma.cc/9W5K-KHWC]. The DOL supports workers by providing job training, wage standards, unemployment benefits, and workplace rights. Frequently Asked Questions: What Does the Department of Labor Do?, Dep’t of Lab., https://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=478&faqsub=General+Information&faqtop=About+DOL&topicid=9[https://perma.cc/437H-Y8YX]. OSHA, a part of the DOL, focuses on setting standards and enforcing regulations to ensure workplace safety and health. About OSHA, Occupational Safety & Health Admin., https://www.osha.gov/aboutosha[https://perma.cc/N3U6-AAHU].

[44] Policies on Gender Identity, supra note 43.

[45] A Guide to Restroom Access, supra note 43.

[46] Id. at 2.

[47] Id.

[48] Id.

[49] Id. at 4.

[50] Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019).

[51] Id. at 331.

[52] Id.

[53] Id. at 330 (first citing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); then citing EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); and then citing Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)).

[54] Id.

[55] Id.

[56] Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020).

[57] Id. at 653–54.

[58] Id. at 654.

[59] See id.

[60] Id. at 658, 660, 663–66.

[61] Id. at 653. In Bostock, the Court defined discrimination by example, stating: “[A]n employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Id. at 658.

[62] Id.

[63] See id. at 658, 660, 663–66.

[64] See Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[65] See La. Rev. Stat. § 9:62.

[66] Id.

[67] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].

[68] Id.

[69] Public Schools, La. Dep’t of Educ., https://www.louisianabelieves.com/schools/public-schools [https://perma.cc/XQC9-Z992].

[70] Spring 2024 Student Enrollment Highlights, La. State Univ. Off. of Data and Strategic Analytics, https://gradlsu.gs.lsu.edu/data/files/enrollment_highlights/spring2024_enrollment-highlights.pdf [https://perma.cc/S76Y-F3QB]; La. Dep’t of Educ., Multiple Statistics By School System for Elementary/Secondary Public Students (2024), (available at https://louisianabelieves.com/resources/library/student-attributes [https://perma.cc/7PRT-PYMC]).

[71] See La. Rev. Stat. § 9:62(B)(1).

[72] See Bostock v. Clayton Cnty., 590 U.S. 644, 658, 660, 663–66 (2020).

[73] See id.; Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[74] La. Rev. Stat. § 9:62(B)(1).

[75] Id.; See id. § 1:3. (“The word ‘shall’ is mandatory, and the word ‘may’ is permissive.”).

[76] Id.  § 9:62(B)(1).

[77] See id.

[78] Id.

[79] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].

[80] Compare La. Rev. Stat. § 9:62(B)(1), with Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[81] La. Rev. Stat. § 9:62(B)(1).

[82] See generally Jenny Graves, How Genes and Evolution Shape Gender – and Transgender – Identity, The Conversation (Jan. 23, 2019, 2:05 PM), https://theconversation.com/how-genes-and-evolution-shape-gender-and-transgender-identity-108911?form=MG0AV3 [https://perma.cc/V97R-EYSR].

[83] See Lusardi, 2015 WL 1607756; Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020); Policies on Gender Identity, supra note 43.

[84] See id.

[85] See id.

[86] La. Rev. Stat. 9:62(B)(1).

[87] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].

 

 

By Patrick Calhoun

Introduction

On October 12, 2019, voters from the southeast corner of East Baton Rouge Parish approved a proposal to incorporate the newest and most controversial city in Louisiana.[1] St. George, Louisiana, is the culmination of at least four failed attempts by area residents to, among other things, create their own school district separate from East Baton Rouge Parish.[2] Proponents for the creation of St. George saw incorporation as a tool to gain more control over their locality and government services and escape what some residents saw as a free rider problem: the St. George area accounted for two-thirds of East Baton Rouge Parish’s tax revenue but received only one-third of the services.[3] They were also inspired by other school-district-motivated incorporations like that of nearby Central, Louisiana, in 2005.[4] As facially innocuous as that motivation may seem, opponents saw the move to incorporate St. George as “white flight” that evolved into a flat-out resegregation of schools.[5] This blog post will discuss the Louisiana First Circuit’s and the Louisiana Supreme Court’s legal reasoning in Broome v. Rials, the case surrounding St. George’s controversial incorporation.[6]

As many Louisianians are probably aware, the Louisiana Supreme Court’s contentious 4–3 decision allowed St. George to incorporate.[7] What the future holds for the territory remaining in East Baton Rouge and for the newly incorporated City of St. George is uncertain. What is probable, however, is that the City’s transition will be watched closely—not just by the Capitol City locals—  but by other suburban communities in the state and the country who feel increasingly alienated by local governments, which they feel are not representative of their values.[8] Since 2000, 128 communities have attempted to split from their school districts, and 73 have been successful.[9] The question remains as to whether those left behind will suffer disparately because of such an incorporation, and if so, what a reasonable solution is.

I. The History of East Baton Rouge Parish

In 1947, the City of Baton Rouge and East Baton Rouge Parish created a consolidated government that would serve both the residents within the City limits and the rural unincorporated residents of the remainder of the Parish.[10] At the outset, the consolidation stood to significantly benefit the Parish’s rural areas because it allowed more remote residents to use City services.[11] Much has changed since 1947, and the administrative efficiencies of consolidation placed the horse before the cart in the eyes of St. George residents, specifically as it related to schooling.[12] St. George is now the fifth-largest city in the State, hardly a distant rurality, and the residents of the area felt that they were no longer the beneficiaries of a consolidated government, but the benefactors.[13]

This desire for change spurred action in 2013 when the first legislative attempt to create a new school district in St. George passed the Louisiana House of Representatives but did not pass the two‑thirds majority required to receive state funding.[14] Legislators told the leaders of the new school-district efforts, Chris Rials and Norman Browning (“Incorporators”), that the ultimate failure to receive funding for a school district was because St. George was not incorporated as a city.[15] Figuring out how to use incorporation as a means to did not require the Incorporators to conduct a nationwide search for a playbook. Central, a recently incorporated city north of Baton Rouge, received legislative support for a school district only after it became a new city.[16]

Incorporating a new city was no small feat, especially when the effort garnered more and more pushback from residents of the remaining unincorporated East Baton Rouge Parish.[17] To incorporate, Louisiana law requires the signatures of 25% of the electorate of the proposed area of incorporation in support of the petition.[18] The law then requires the East Baton Rouge Parish Registrar to validate the petition’s accuracy, which is subsequently sent to the governor who calls a special election.[19] Finally—well, not always finally—the residents of the area to be incorporated vote to determine whether they will incorporate the new city.[20] The petition is then sent to the governor who authorizes its placement on a ballot for a special election.[21] A majority of votes for incorporation creates a new city, and the Governor then appoints an interim mayor and metro council to govern.[22]

In 2015, the Incorporators canvassed for signatures to place the petition on the ballot for a special election.[23] The petition did not meet the signature requirement by a mere 71 votes.[24] This defeat resulted from the Registrar of Voters invalidating many signatures, as well as significant counter‑canvassing by those opposing incorporation.[25] The state court, interestingly, dismissed the legal challenge to the Registrar of Voters’ decision concerning the insufficiency of signatures for the petition on the grounds that the Incorporators did not have the standing to sue.[26] The petition’s failure to make the ballot also meant that the Incorporators could not try again to incorporate for another two years.[27]

On March 2, 2018, predictably, St. George incorporators filed the fourth petition for incorporating the City of St. George.[28] The petition therefore needed 12,996 signatures to meet the 25% minimum, and ultimately 14,585 people signed it.[29] On March 29, 2019, Governor John Bel Edwards authorized the petition’s placement on the ballot for residents to vote on in October.[30] Garnering a 60% voter turnout, 54% of residents voted in favor of incorporating St. George, passing statutory muster.[31] Before Governor Edwards could even appoint an interim mayor after the incorporation succeeded in the special election, the Mayor–President of East Baton Rouge Parish, Sharon Weston Broome, and others[32] (“Challengers”) brought a lawsuit to challenge the incorporation of St. George.[33]

II. Pre-Trial, Trial, and the First Circuit

The Challengers initially filed their action against the Incorporators in the 19th Judicial District Court on November 4, 2019, pursuant to Louisiana Revised Statutes section 33:4.[34] The Challengers alleged that:

(1) the petition for incorporation is “fatally defective” because it failed to comply with La. R.S. 33:1(A)(4), which requires that a petition for incorporation include a listing of the public services that the municipal incorporation proposes to render to the area and a plan for the provision of those services; (2) the incorporation was unreasonable because it would have an adverse impact on the City of Baton Rouge, the proposed municipality and its organizers would be unable to provide the proposed public services within a reasonable period of time, and the proposed plan fails to comply with the Louisiana Constitution, which requires a regularly paid and full-time police and fire department in cities with more than 13,000 residents, and the police and fire departments must be Civil Service classified; (3) the incorporation was unreasonable because the organizers demonstrated “a clear intent to impermissibly dilute minority voting power” in drawing the boundaries of the proposed city; and (4) the incorporation would violate Section 1.05 of the Plan of Government for the City of Baton Rouge and Parish of East Baton Rouge (“City-Parish”), which prohibits any additional cities, towns, or villages from being incorporated in EBRP.[35]

By the time the court set the matter for trial, the only plaintiffs remaining were Sharon Weston Broome and LaMont Cole, a Metropolitan Councilman for East Baton Rouge Parish.[36] The Louisiana Supreme Court noted early in its opinion that neither Weston Broome nor Cole owned property in the proposed area of incorporation at the time.[37]

Proponents for St. George called the claims “frivolous” and alleged that they undermined the democratic process.[38] The Challengers’ economic expert, Louisiana State University economics professor emeritus James Richardson, testified that the departure of St. George and the tax income Baton Rouge will consequently lose will cause East Baton Rouge Parish to lose $52 million in expected revenue.[39]

In response to the lawsuit, the Incorporators filed exceptions for no cause of action, no right of action, and alternative exceptions of improper cumulation of actions and failure to join parties needed for adjudication.[40] At the exception hearing, the trial court sustained the exception of no right of action as to one of the other plaintiffs but overruled the exception as to Weston Broome and Cole.[41] The trial court also essentially overruled the remaining exceptions filed, after which the Incorporators asserted general denials and defenses to the Challengers’ petition.[42]

After several hearings on discovery issues, motions for summary judgment, and motions in limine, the court set the dispute for trial.[43] An eight‑day bench trial began on May 2, 2022, after which the court took the matter under advisement.[44] The trial court found the incorporation of St. George unreasonable and potentially adverse to East Baton Rouge Parish in violation of Louisiana Revised Statutes section 33:4.[45] Specifically, the trial court ruled that: (1) Cole failed to prove that the organizers for incorporation intentionally drew the map of the city to exclude minorities; (2) the petition placed citizens on notice of what services the new city would provide and what it may provide; (3) the proposed city could “in all probability” provide some of the proposed public services within a reasonable period of time; (4) it is doubtful that the city would be able to provide certain services enumerated in the petition for incorporation without increasing taxes; (5) the proposed city would run a deficit from the first day of its existence, without even considering the additional cost of the Sheriff’s services; and (6) the reduction in revenue because of incorporating the proposed city would clearly have a substantial adverse effect on neighboring areas, namely the remainder of East Baton Rouge Parish.[46] The Incorporators appealed to the Louisiana First Circuit Court of Appeal.[47]

A. First Circuit—No Right of Action

On appeal, Incorporators re‑raised the exception of no right of action pursuant to Louisiana Revised Statutes section 33:4(A)(3), as well as the exception of no cause of action challenging the constitutionality of Louisiana Revised Statutes sections 33:4(A)(3), (B), (D), and (E)(2)(a).[48] Louisiana Revised Statutes section 33:4(A)(3) provides the standing requirements for challenging an incorporation petition.[49] Louisiana law limits those able to challenge an incorporation effort to: (1) any elector residing in the area proposed for incorporation; (2) any person owning land in such area; or (3) any municipality that might be adversely affected or an elected official of the governing authority of such a municipality.[50]

At the First Circuit, the Incorporators re-urged that the remaining Challengers, Weston Broome and Cole, lacked standing because Weston Broome is not an elected official of the City of Baton Rouge and Cole did not act with the Metropolitan Council’s approval.[51] As to Weston Broome, the Incorporators argued that the “governing authority” of Baton Rouge was the Metropolitan Council, not the Mayor, because Louisiana Constitution article VI section 44(4) defines a governing authority as “the body which exercises the legislative functions of the political subdivision.”[52] The First Circuit, citing to the East Baton Rouge Parish and the City of Baton Rouge’s Plan of Government, ruled that the Mayor–President is the Chief Executive Officer, but is not the “governing body” or “governing authority” of the City-Parish.[53] As a result, Weston Broome did not have a right of action, and the First Circuit dismissed her as a plaintiff.[54]

The First Circuit pointed out that the “governing authority” was therefore the Metropolitan Council.[55] The First Circuit found that Cole was “an elected official of the governing authority” as Louisiana Revised Statutes section 33:4(A)(3) requires.[56] Because the Council, as a juridical person, can act only through its members, the court held Cole had a right of action and therefore had standing to challenge the petition for incorporation.[57]

B. First Circuit—No Cause of Action

Next, the First Circuit examined the Incorporators’ exception for no cause of action that contended that Act 536, which enacted La. R.S.section 33:4(A)(3) and amended subsections (B), (D), and (E)(2)(a), violates: (1) voting rights under Louisiana Constitution article I, section 10 and the 14th Amendment to the United States Constitution; (2) the prohibition set forth in Louisiana Constitution article III, section 12(A)(1) against special laws for  holding and conducting elections; (3) the prohibition set forth in Louisiana Constitution article VI, section 8  because the article allows elected officials of a municipality to challenge an incorporation; and (4) the mandate set forth in Louisiana Constitution article XI, section 1, providing that the legislature adopt an election code that shall provide for the conduct of all elections.[58] The First Circuit disposed of these challenges without extensive discussion on the arguments because litigants must raise constitutional attacks at the trial court level to ensure interested parties have sufficient time to brief and prepare arguments in defense.[59] Incorporators did not raise their constitutional challenge at trial which therefore precluded them from raising these issues on appeal.[60]

C. First Circuit—Substantive Arguments

With the review of exceptions disposed of, and with LaMont Cole, the only remaining Challenger, the First Circuit discussed disputing incorporation under Louisiana Revised Statutes section 33:4.[61] The First Circuit listed the requirements to incorporate as follows: (1) whether there was full compliance with the incorporation procedural provisions; (2) whether the municipality can “in all probability” provide the proposed public services within a reasonable period of time; and (3) whether the incorporation was reasonable.[62] In determining if an incorporation is reasonable, the court must consider the negative effects to the surrounding municipalities.[63] The First Circuit, after much discussion about the legislative history of Louisiana Revised Statutes sections 33:1–7, determined that the petition’s terse descriptions for incorporation were insufficient to comply with the requirements in Louisiana Revised Statutes section 33:1 because they did not include a plan for providing services.[64] Thus, the Challengers succeeded yet again and defeated the incorporation with one plaintiff, LaMont Cole, remaining.

III. Louisiana Supreme Court

Predictably, the Incorporators and filed an appeal to the Louisiana Supreme Court.[65] The Incorporators once again appealed the lower courts’ denials of the exception of no right of action as to LaMont Cole.[66] The Louisiana Supreme Court accepted the First Circuit’s ruling that Cole fell within the category Louisiana Revised Statutes section 33:4(A)(3) provided.[67] However, the Supreme Court’s inquiry did not end there because Cole also required  a “real and actual interest” in the claims asserted.[68] If a person with standing does not challenge the incorporation, the electorate’s affirmative vote in the special election is valid and final.[69]

A. Louisiana Supreme Court—No Right of Action

The Incorporators argued that Cole could challenge only whether the incorporation was unreasonable as it relates to the adverse effect on his municipality.[70] The Challengers argued that once they contest the incorporation generally, the Court determines the fulfillment of all the requirements for incorporation.[71] The Court sided with the Incorporators, finding the Challengers could only dispute the incorporation’s validity as to issues they had a real and actual interest in.[72]

Regarding the first issue, the petition’s sufficiency, the only people who have a real and actual interest are “elector[s] residing or owning land” in the area to be incorporated.[73] Cole did not reside or own land in St. George.[74] Therefore, he did not have a real or actual interest in the sufficiency or insufficiency of the petition for incorporation.[75]

The Supreme Court went on to state that Cole certainly had standing to challenge incorporation as unreasonable because of its adverse effects on Baton Rouge as a municipality in the vicinity.[76] The Court resolved this issue without much discussion because the Incorporators acknowledged Cole’s standing.[77] The Incorporators’ own contention on appeal was that the adverse effects on his municipality was, in fact, the only issue Cole could permissibly challenge.[78]  

The Supreme Court finally discussed whether Cole had a real and actual interest sufficient to challenge St. George’s ability to provide services to its residents within a reasonable period of time.[79] The Court reasoned that should St. George fail to provide services to its citizens, the City-Parish would bear that responsibility.[80] The Court considered this a real and actual interest as to Cole because he is an elected official of the municipal-juridical person to be adversely affected, the City of Baton Rouge.[81]

B. Adverse Effects

The Louisiana Supreme Court went on to evaluate whether St. George could provide services within a reasonable time.[82] The testimony of Challengers’ expert economist, Dr. James Richardson, reflected that St. George would run a deficit the first day after its incorporation; the trial court ruled that it is therefore doubtful that St. George could timely provide all proposed services.[83] The Court disagreed with Dr. Richardson’s estimation, finding that he did not follow the methodology for calculating pension liability, which brought the annual operating cost down to “$47.81 million, well within its undisputed $48 million revenue estimate.”[84] The Court did not give more details  into Dr. Richardson’s calculation’s flaws because the fact that a balanced budget likely existed meant St. George could, in all probability, provide the proposed public services.

The incorporation’s “reasonableness” was the Supreme Court’s final inquiry.[85] The trial court found an unreasonable adverse effect on Baton Rouge that required denial of incorporation.[86] The Supreme Court especially took issue with the trial court considering only Baton Rouge’s lost revenue in its judgment and ignoring the amount of cost the City will save as a result.[87] The Court found Louisiana laws favor incorporation, and a successful vote to incorporate is presumed valid unless overcome by a showing of unreasonableness.[88]

The Louisiana Supreme Court, trying to encourage consideration of many more issues, adopted a 14‑factor list of useful inquiries to determine reasonableness that the Mississippi Supreme Court invented.[89] The Mississippi Supreme Court provided the following non‑exclusive factors:

[1] whether a proposed area has definite characteristics of a village; [2] whether the residents of the proposed area for incorporation have taken initial steps toward incorporation; [3] whether a nearby city has initiated preliminary proceedings toward annexation; [4] whether there has been any financial commitments toward incorporation or annexation proceedings; [5] whether a neighboring city has the prerogative to contest incorporation, although consent of nearby city not required; [6] whether incorporation [a]ffects an existing city within three miles; [7] whether population of area shows an increase and continuity of settlement; [8] whether a community has a separate identity; [9] whether natural geographical boundaries separate an area from other municipalities; [10] whether transportation is affected; [11] whether incorporation will affect the interest of landowners in the affected area; [12] whether cost of operating the municipality is prohibitive; [13] whether an estimated tax base of proposed area will support incorporation; [14] whether the overall welfare of residents of affected area is improved by incorporation.[90]

The Louisiana Supreme Court considered whether each factor favored or disfavored incorporation.[91] The Court found twelve factors for incorporation and the remaining two as neutral to incorporation.[92] Considering this factual determination, the Court found incorporation reasonable.[93]

C. Chief Justice Weimer’s Dissent

Chief Justice Weimer wrote a critical dissent of the majority’s opinion, calling it a “result masquerading as an opinion.”[94] He disagreed with the majority’s finding that LaMont Cole had no right of action to contest the petition’s sufficiency.[95] Chief Justice Weimer emphasized that having standing and having a right of action are not synonymous and that Louisiana Revised Statutes section 33:4 grants Cole the right of action even if he lacks a “real and actual interest.”[96] The statutory language provides who may challenge a petition for incorporation, and Chief Justice Weimer stated that using the words “shall determine” infers that a plaintiff is unlimited in what he or she may challenge.[97]

Therefore, Chief Justice Weimer posited that Cole has a right to challenge all requirements for incorporation under the statute, not merely those that he has a real and actual interest in.[98] He agreed with the First Circuit that because the petition did not contain a plan for providing services, it was insufficient because it did not fully comply with the statutory requirements of incorporation.[99]

IV. Takeaways

In sum, the Louisiana Supreme Court found that none of the Challengers had standing to challenge the sufficiency of the petition for incorporation.[100] The majority concluded that St. George will likely have a balanced budget and could therefore likely provide the services in the petition.[101] After discussing the factors the Mississippi Supreme Court created to determine reasonableness of incorporation, the majority finally found that the negative impact on the remainder of East Baton Rouge Parish was merely one of many factors and not alone adequate to overcome an incorporation’s presumed validity. [102]

The question is this: would a crystal ball have helped the Challengers, or was their case doomed from the outset? Or was this, as the Chief Justice said, “a result masquerading as an opinion”?[103] For starters, none of the Challengers resided or owned property in St. George.[104] By the Supreme Court’s own rule in this case, that would have at least created standing to challenge the petition’s sufficiency.[105] The Court nevertheless found that the petition “minimally satisfie[d]” the statute’s requirement.[106] However, Chief Justice Weimer’s and the Challengers’ arguments alleging the petition inadequate may have been taken more seriously by the majority had someone with standing challenged it.[107] It certainly would have required more extensive written reasons to prove why the petition was not inadequate.

As for providing services in a reasonable time, the Court took issue with the calculation methods the Challengers’ expert used. It is therefore unlikely that the Challengers could have benefitted from hindsight on this issue.[108] The Court based its decision of this issue on a highly fact-specific inquiry, and different methodologies could certainly produce different results. Absent some showing of true financial deficiency, challengers of incorporation would have had a hard time changing an outcome with an expert’s testimony. For future challengers this will likely not be a winning issue, as the incorporating area is usually wealthier than the populous that they are leaving.[109]

Finally, as the Louisiana Supreme Court made clear, the law favors incorporation unless a challenger can prove it is, without doubt, unreasonable.[110] In determining “reasonableness,” the Court employed a 14-factor test that it will likely treat as “controlling” for future challengers and incorporators alike.[111] The Court favored the Incorporators on 12 of 14 factors and did not find for the Challengers on a single one.[112] Is this issue a remotely winnable one for future challengers based on these factors? The factors are non‑exhaustive, so the door remains ajar for a ruling against incorporation should an incorporation destroy what remains of the surrounding community. Absent gross inequity to include the haves and exclude the have-nots, arbitrary boundaries would not seem to move the Louisiana Supreme Court to block an incorporation as unreasonable. Notably, the Court sided with Jean-Paul Tujague, the Incorporators’ economic expert, finding no fiscal impact on Baton Rouge because of a complete cost offset.[113]

V. Conclusion

Looking forward, there is little an opposition can do to stop an incorporation once a majority vote “yes” in a special election. The Louisiana Supreme Court resolved Broome v. Rials, generally based on a standing issue, but the Court went even further to emphasize that the bar to overcome a challenge to incorporation is extremely high.[114] The bar is higher still for someone who does not reside within the proposed city’s limits because he or she will be unable to challenge the sufficiency of the petition.[115]

Unless there is a change in the Court’s composition, it is reasonable to expect that challengers can do little to stop the creation of a new city like St. George in the future based on the decision in Broome v. Rials. The Court did not find that what remained of the post-incorporation East Baton Rouge Parish would suffer disparately as some say, but as time goes on, the narrative can shift from speculative to empirical. Should East Baton Rouge Parish flounder because of St. George incorporating, the legislature could change the law, or the Court could create a new test. Until then, the best hope for challengers to these new cities is to sow favor in the court of public opinion to influence future voters.

[1] About Us, The City of St. George La., http://stgeorgelouisiana.com/about-us/ [https://perma.cc/57J4-V348].

[2] The City of St. George La., http://stgeorgelouisiana.com [https://perma.cc/9DK8-NMEW].

[3] About Us, supra note 1.

[4] Broome v. Rials, 383 So. 3d 578, 589 n.16 (La. 2024).

[5] Adam Harris, The New Secession, Atlantic (May 20, 2019), https://www.theatlantic.com/education/archive/2019/05/resegregation-baton-rouge-public-schools/589381/ [https://perma.cc/N84N-2LCN]; NAACP Releases Statement About Incorporation of City of St. George, WAFB (Apr. 29, 2024), https://www.wafb.com/2024/04/29/naacp-releases-statement-about-incorporation-city-st-george/ [https://perma.cc/R2JU-D8CZ].

[6] Broome, 383 So. 3d 578.

[7] Id.

[8] See Greater Baton Rouge Civic Association, Supporting Data 31 (Sept. 12, 2019), http://stgeorgelouisiana.com/wp-content/uploads/2020/05/GreaterBRCivicAssn-SupportingData.pdf [https://perma.cc/8REQ-G5AW]; About Us, supra note 1.

[9]  Fractured: The Breakdown of America’s School Districts, EdBuild, https://edbuild.org/content/fractured#intro [https://perma.cc/V2JP-EWEC].

[10] Our Government, City of Baton Rouge, https://www.brla.gov/1062/Our-Government [https://perma.cc/8NHB-R9W6]. Early local governments viewed consolidation as an efficient move for metropolitan areas because it removes many redundancies in operating two distinct local governing bodies. Id. Consolidating East Baton Rouge Parish’s local government is the reason Sharon Weston Broome holds the title of “Mayor–President,” as she is both the Mayor of the City of Baton Rouge and the President of East Baton Rouge Parish. Id.

[11] Id. The consolidated City–Parish provides a number of services for residents beyond Baton Rouge’s city limits. See Services, City of Baton Rouge, https://www.brla.gov/101/Services [https://perma.cc/G5WK-Q7HL].

[12] See Greater Baton Rouge Civic Association, supra note 8, at 31.

[13] See About Us, supra note 1.

[14] See Act No. 295, 2013 La. Acts 1853 (codified at La. Rev. Stat. §§ 17:58.2(I), 17:67, 17:67.1–67.4). But see S.B. 73, 2013 Leg., Reg. Sess. (La. 2013).

[15] Frequently Asked Questions, The City of St. George La., http://stgeorgelouisiana.com/faq/ [https://perma.cc/G4F7-HKR8].

[16] Harris, supra note 5. Central, Louisiana, is demographically like St. George and were also told they would need to incorporate as its own city to receive legislative support to receive funds for its own school district. See Ronny Reyes, Wealthy White Louisiana Residents Win Right To Split From Baton Rouge And Form Their Own City, New York Post (Apr. 29, 2024, 7:34 PM), https://nypost.com/2024/04/29/us-news/wealthy-white-louisiana-residents-split-from-baton-rouge-to-form-their-own-city/ [https://perma.cc/GYQ4-65E8].

[17] See Rebekah Allen, Better Together Staying Focused on Stopping St. George, Advocate (Apr. 13, 2015) https://www.theadvocate.com/baton_rouge/news/article_cae2316b-9273-527f-af6c-4d3d49184fab.html [https://perma.cc/B6JB-56XL].

[18] La. Rev. Stat. § 33:1.

[19] Id. at §§ 33:2–3.

[20] Id. at § 33:3. As discussed later in this Part, St. George’s petition was eventually challenged which delayed the incorporation efforts until after a court’s approval. Id. at § 33:4.

[21] La. Rev. Stat. § 33:3.

[22] Id.

[23] Harris, supra note 5.

[24] Paul Cobler & Andrea Gallo, Appeals Court Shoots Down Proposed New City Of St. George; Supporters Vow To Appeal, Advocate (July 14, 2023), https://www.theadvocate.com/baton_rouge/news/courts/louisiana-appeals-court-denies-st-george-incorporation/article_482be934-2252-11ee-b298-1bf137eb3317.html [https://perma.cc/M7ZN-555M].

[25] See Allen, supra note 17. The spokesperson for the Registrar of Voters estimated that 17.5% of the signatures on the petition were invalidated, and 139 initial signatories submitted forms to have their names removed outright. See Rebekah Allen, Registrar Of Voters Says They Should Know By Wednesday Whether Enough Signatures Collected to put St. George to Vote, Advocate (Mar. 24, 2015) https://www.theadvocate.com/baton_rouge/news/registrar-of-voters-says-they-should-know-by-wednesday-whether-enough-signatures-collected-to-put/article_eb063d5f-1801-56c8-9d57-bf6475db56c1.html [https://perma.cc/JL39-UUFW].

[26] See Kiran Chawla, Judge Denies Request From St. George Petition Organizers For Re-Verifying Signatures On Technicality, WBRZ (July 6, 2015, 9:33 PM), https://www.wafb.com/story/29483207/judge-denies-request-from-st-george-petition-organizers-for-re-verifying-signatures-on-technicality/ [https://perma.cc/ZQ9J-LBUS].

[27] La. Rev. Stat. § 33:2.

[28] La. Rev. Stat. §§ 33:1–7; Broome v. Rials, 383 So.3d 578, 583 (La. 2024).

[29] La. Rev. Stat. § 33:1; Diana Samuels, Petition for New City of St. George in East Baton Rouge Parish Certified, NOLA.com (Jul. 22, 2019), https://www.nola.com/news/petition-for-new-city-of-st-george-in-east-baton-rouge-parish-certified/article_190a1a10-a476-509b-bad1-eb4090ac6420.html [https://perma.cc/7XJL-SNHC].

[30] Proclamation No. 48 JBE 2019 (La. Mar. 29, 2019).

[31] La. Rev. Stat. § 33:3.

[32] The other plaintiffs were Lewis Unglesby, M.E. Cormier, and LaMont Cole. Broome v. Rials, 383 So.3d 578, 583 n.4 (La. 2024).

[33] Broome, 383 So.3d at 583.

[34] Broome v. Rials, 375 So.3d 428, 432 (La. Ct. App. 2023), rev’d, Broome v. Rials, 383 So.3d 578 (La. 2024).

[35] Id. at 432–33. Municipality is defined as “any incorporated city, town or village.” La. Rev. Stat. § 33:101.

[36] See id. Unglesby voluntarily withdrew, and Cormier was dismissed on an exception of no right of action. See Broome, 383 So.3d at 583 n. 4.

[37] Broome, 383 So.3d at 586.

[38] Update: Mayor-President Sharon Weston Broome Files Lawsuit Against the City of St. George, BRProud (Nov. 4, 2019, 8:37 PM), https://www.brproud.com/news/mayor-president-sharon-weston-broome-files-lawsuit-against-the-city-of-st-george/ [https://perma.cc/W5CK-AANC].

[39] Joe Gyan Jr., St. George Trial: Would New City Have Enough Money? Why Is Baton Rouge ‘Not Keeping Up?’, Advocate (May 5, 2022), https://www.theadvocate.com/baton_rouge/news/courts/st-george-trial-would-new-city-have-enough-money-why-is-baton-rouge-not-keeping/article_39e1801e-cc18-11ec-9910-7745c60e9bd8.html [https://perma.cc/MYU7-DZWU].

[40] Broome, 375 So.3d at 433.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 442.

[47] Id.

[48] Id. at 434.

[49] La. Rev. Stat. § 33:4(A)(3).

[50] Id.

[51] Broome, 375 So.3d at 434.

[52] Id. at 434–35.

[53] Id. at 435; Baton Rouge, La., The Plan of Government of the Parish of East Baton Rouge and the City of Baton Rouge (Dec. 2, 2015), https://www.brla.gov/DocumentCenter/View/2967/PLAN?bidId= [https://perma.cc/JG8N-FJQA].

[54] Broome, 375 So.3d at 437.

[55] Id. at 436.

[56] Id.

[57] Id. at 437.

[58] Id. at 438. A home rule charter provides for the organization and assignment of powers and duties for the officials of a local governing authority. La. Const. art. VI, § 5.

[59] Broome, 375 So.3d at 439; see also Unwired Telecom Corp. v. Par. of Calcasieu, 903 So. 2d 392, 399 (La. 2005).

[60] Broome, 375 So.3d at 440.

[61] Id. at 442.

[62] Id.

[63] Id.

[64] Id. at 444. At trial, Rials testified that the petition contained a “summary of the plan,” but the court held that the plan did not contain enough information to place the citizens of the area on adequate notice of the plan for providing those services. Id.

[65] Broome v. Rials, 383 So. 3d 578, 582 (La. 2024).

[66] Id. at 584.

[67] Id. at 585; see also La. Rev. Stat. § 33:4(A)(3).

[68] Broome, 383 So. 3d at 585; see also La. Code Civ. Proc. art. 681.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id. at 586.

[74] Id.

[75] Id.

[76] Id. at 586–87; La. Rev. Stat.  § 33:4(A), (D).

[77] Broome, 383 So.3d at 586–87.

[78] Id.

[79] Id. at 587.

[80] Id.

[81] Id.; La. Rev. Stat. § 33:4(A)(3).

[82] Broome, 383 So. 3d at 587.

[83] Id.

[84] Id. at 588.

[85] Id. at 589; La. Rev. Stat. § 33:4(D).

[86] Broome, 383 So. 3d at 589.

[87] Id.

[88] Id. at 590; see also La. Const. art. I, §§ 1, 24, 26; Id. art. VI, §§ 2, 8.

[89] Broome, 383 So.3d at 590–91.

[90] Id. (quoting City of Pascagoula v. Scheffler, 487 So. 2d 196, 201-02 (Miss. 1986)).

[91] Broome, 383 So. 3d at 591–95.

[92] Id.

[93] Id.

[94] Id. (Weimer, C.J., dissenting).

[95] Id.

[96] Id. at 596; see also La. Code Civ. Proc. art. 681 (providing that “[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts”). Chief Justice Weimer contended that because the statutes list who has a cause of action, there is no need for Cole to have standing in the traditional sense. Broome, 383 So. 2d at 596 (Weimer, C.J., dissenting).

[97] Broome, 383 So. 3d at 598 (Weimer, C.J., dissenting); La. Rev. Stat.  § 33:4.

[98] Broome, 383 So.3d at 598.

[99] Id.; La. Rev. Stat. § 33:1(A)(4).

[100] See Broome, 383 So. 3d 578.

[101] Id. at 588–89.

[102] Id. at 590–95; City of Pascagoula v. Scheffler, 487 So. 2d 196, 201–02 (Miss. 1986).

[103] Broome, 383 So. 3d at 595 (Weimer, C.J., dissenting).

[104] Id. at 583.

[105] See id. at 586.

[106] Id. at 600 (Weimer, C.J., dissenting).

[107] Id.

[108] Id. at 588.

[109] See id. at 598.

[110] Id. at 589–90.

[111] Id. at 590–91.

[112] See id. at 591–95.

[113] Id. at 592–93.

[114] See id. at 589–90.

[115] See id. at 585–86.

By Madelyn Graves 

Introduction

Imagine a Louisiana seaman working aboard a vessel that transports cargo across international waters, constantly traveling between ports of different foreign nations.[1] During his voyage, the seaman becomes gravely ill, leading to months of hospitalization and expensive medical procedures.[2] The seaman files suit against the ship management company in his home state, Louisiana, alleging that the ship manager failed to maintain an adequate supply of medication on the vessel.[3] However, because the vessel regularly changed locations, it remains unclear which nation’s laws will govern the seaman’s claim.[4] For instance, the seaman contracted the disease while docked at the port of one nation, became symptomatic while sailing through the waters of a second nation, and was hospitalized in a third nation. Additionally, the seaman worked on a foreign vessel pursuant to a foreign employment contract, implicating a fourth and fifth nation.

Under the traditional choice of law test, the seaman’s attorney could look to the law of the flag—that is, the nation where the ship is registered—as a reliable indicator.[5] Absent proof that “another nation has a more significant, countervailing interest,” the law of the flag traditionally controlled, ensuring consistent and predictable results in the choice of law analysis.[6] However, in Ganpat v. Eastern Pacific Shipping PTE, Ltd., the Fifth Circuit left uncertainty surrounding the law of the flag’s proper weight when the vessel owner is not a party to the claim.[7] Because of this ambiguity, district courts in the Fifth Circuit may incorrectly discount the importance of the law of the flag based on the defendant’s identity, undermining the goals of consistency and predictability and creating precedent that is unfaithful to the original purpose of the test.[8] Thus, when administering the choice of law test, Fifth Circuit courts should show deference to the law of the flag in all traditional maritime cases, regardless of the defendant’s shipowner status.

I. Background

Since maritime employment is often transient by nature, multiple nations may have a connection to a plaintiff’s maritime tort claim.[9] In Lauritzen v. Larsen and Hellenic Lines, Ltd. v. Rhoditis, the United States Supreme Court articulated an eight-factor test to determine whether U.S. maritime law or foreign law should govern these actions.[10] These factors are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured worker; (4) the allegiance of the defendant; (5) the place of the contract; (6) the inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations.[11] This test is not a quantitative one in which courts simply count the relevant contacts with each nation.[12] Rather, the “significance of each factor must be considered within the particular context of the claim and the national interest that might be served by the application of United States law.”[13] Therefore, each factor’s weight depends on the nature of the maritime activity the plaintiff engaged in.[14]

II. The Choice of Law Test for Traditional vs. Nontraditional Maritime Activity

Specifically, the weight of each factor hinges on whether the plaintiff engaged in “traditional” or “nontraditional” maritime activity, and courts make this distinction based on whether the plaintiff worked aboard a transient or stationary vessel.[15] If the plaintiff worked aboard a seafaring vessel that “regularly transports cargo across international waters between the ports of various sovereign nations,” then the plaintiff engaged in “traditional maritime commerce.”[16] Under these circumstances, courts accord minimal weight to the place of the wrongful act, because of the fortuity of the ship’s location when a shipboard tort occurs.[17] Likewise, courts also discount the significance of the allegiance or domicile of the injured worker and the place of contract in this context.[18] In contrast, the law of the flag is “of cardinal importance” in determining the law applicable to traditional maritime cases.[19] This factor’s deferential treatment is rooted in pragmatism, stability, predictability, and international comity, as “there must be some law on shipboard . . . [and] it cannot change at every change of waters.”[20] For this reason, “the flag that a ship flies may, at times, alone be sufficient” to determine which nation’s law applies.[21] Further, because shipowners may register their ships in countries other than their own and each nation has an interest in governing its citizens’ conduct, the defendant’s allegiance remains another important factor.[22]

In contrast, if the plaintiff participated in offshore oil production on a vessel permanently stationed off a particular country’s coast, then the plaintiff engaged in “nontraditional maritime employment.”[23] Factors that courts deem less important in the traditional shipping context—such as the place of the wrongful act, the allegiance or domicile of the injured, and the place of the contract—gain significance in nontraditional maritime cases.[24] As a result, the law of the flag falls subordinate to these factors, as its purpose becomes less compelling when the plaintiff is permanently stationed in one nation’s waters.[25]

III. The Law of the Flag When the Vessel Owner is Not a Party

Based on the transient nature of traditional maritime activity, courts have always shown great deference to the law of the flag in traditional maritime cases.[26] This factor achieves consistency and predictability in cases where the vessel plies the world’s seas and constantly changes locations.[27] However, some courts have questioned this factor’s weight when the vessel owner is not a defendant, reasoning that the vessel and its place of registration are irrelevant to claims against non-shipowners.[28]

For example, in Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., the Second Circuit Court of Appeals noted that it “look[s] to the law of the ship’s flag only if the shipowner is a party.”[29] The court explained:

Whatever significance law of the flag may have in cases where the ship or its owner is a party and where other factors fail to point clearly to another jurisdiction’s law, we see no reason to apply the law of the flag here in preference to that of another jurisdiction whose ties are more pertinent to the dispute, especially given the fact that neither the ship nor the owner is a party.[30]

Likewise, the Fifth Circuit Court of Appeals followed the Second Circuit’s reasoning in Coats v. Penrod Drilling Corp., noting that, because the defendant was not the shipowner, the law of the flag “ha[d] no specific application to it.”[31] Because the Coats plaintiff worked on an offshore drilling rig, this result seemed consistent with Fifth Circuit precedent—as courts generally discount the law of the flag’s importance in nontraditional maritime cases.[32] However, the Fifth Circuit specifically attributed its diminished significance to the fact that the defendant was not the shipowner—not solely because this was a nontraditional maritime case.[33] Notably, the Fifth Circuit failed to clarify whether the law of the flag remained significant in the traditional maritime shipping context when the shipowner was not a party to the claim.[34] As a result, the Fifth Circuit left a gaping hole in courts’ understanding of the Lauritzen-Rhoditis test and the proper weight that they should accord each factor.[35]

IV. The Eastern District Court’s Problematic Holding in Ganpat v. Eastern Pacific Shipping

Without clear instruction from the Fifth Circuit, the Eastern District Court of Louisiana extended the rationale in Coats to a traditional maritime case.[36] In Ganpat v. Eastern Pacific Shipping PTE, Ltd., Kholkar Ganpat, an Indian seaman, contracted malaria while working as a crewmember aboard the M/V STARGATE.[37] Ganpat became symptomatic during the ship’s voyage from Savannah, Georgia to Brazil, where he was hospitalized upon his arrival.[38] Ganpat filed suit against Eastern Pacific Shipping—an international ship management company domiciled in Singapore—alleging that the ship failed to stock the appropriate amount of anti-malaria medicine while docked in Savannah.[39]

While this cause of action implicated several nations, Ganpat’s claim had substantial contacts with Liberia.[40] The M/V STARGATE flew a Liberian flag, a Liberian corporation employed the plaintiff, and his employment contract provided that the law of the ship’s flag governed the agreement.[41] However, when tasked with determining which substantive law applied to Ganpat’s claims, the Eastern District Court unexpectedly held that, under the Lauritzen-Rhoditis test, United States law governed.[42] In its reasoning, the court acknowledged that Ganpat suffered an injury while engaged in traditional maritime activities, and the law of the flag is traditionally “of cardinal importance” in such cases.[43] However, citing Coats, the court declined to consider this factor because Ganpat only filed suit against the ship manager, not the shipowner.[44] Therefore, this factor and other factors involving the vessel owner—such as the base of the shipowners’ operations—had “no specific application” to this case.[45]

After eliminating those two factors, the court explained that the place of injury, allegiance or domicile of the injured, and the place of contract are also insignificant in the traditional maritime context.[46] Consequently, only two factors remained applicable in this case: the allegiance of the defendant and the law of the forum.[47] Because of these limitations, the court drew on other factors beyond the Lauritzen-Rhoditis test, stating that this test was “imbued with a flexibility that permits courts to take account of the context of any incident that American law is alleged to govern.”[48]

As a result of Ganpat, the Eastern District Court essentially created a subcategory of traditional maritime cases where most of the Lauritzen-Rhoditis factors became inapplicable.[49] If the Ganpat decision stood, the district court’s holding would prohibit courts from considering five of the eight factors in traditional maritime cases where the shipowner is not a defendant—effectively unraveling the entire Lauritzen-Rhoditis test.[50] Additionally, in discounting the importance of the law of the flag, the Eastern District Court undermined the test’s fundamental purpose in the traditional maritime context: predictability, consistency, and stability.[51]

V. The Fifth Circuit’s Ambiguous Holding in Ganpat v. Eastern Pacific Shipping

On May 1, 2024, the Fifth Circuit Court of Appeals reversed the district court’s decision, holding that the law of the flag and the shipowner’s base of operations retain some relevance in Ganpat’s case.[52] The court disagreed with the district court’s assertion that “the ‘law of the flag’ and the ‘base of operations’ factors necessarily lack choice-of-law significance in cases where the shipowner is not a defendant.”[53] Moreover, the court acknowledged the need to establish a “uniform, consistent law onboard a ship that traveled through waters of more than one sovereign nation,” and the law of the flag serves this purpose.[54] However, the Fifth Circuit did not fully revert to the traditional application of the Lauritzen-Rhoditis test, where the law of the flag is of “cardinal importance” in all maritime shipping cases.[55] Rather, the court stated that “in traditional maritime shipping cases brought by an injured crew member against a defendant who is alleged to have acted as the owner of the vessel and to have breached duties generally owed by the shipowner, the law of the flag factor maintains at least some significance.”[56]

Thus, the court notably limited its holding to cases where the defendant “act[s] as the owner of the vessel” and “breach[es] duties generally owed by the shipowner.”[57] Further, the Fifth Circuit stated that the law of the flag only maintains some significance in these cases.[58] Leaving many open questions, the Fifth Circuit failed to specify how much weight courts should give the law of the flag when the shipowner is not a defendant.[59] Additionally, the Fifth Circuit leaves lower courts with no guidance as to the test’s proper application if the defendant did not undertake a vessel owner’s duties.[60] This ambiguity leaves room for lower courts to discount the importance of the law of the flag based on the defendant’s identity, undermining the goals of predictability and consistency.

VI. The Proper Weight of the Law of the Flag in Traditional Maritime Cases

To achieve consistency and avoid uncertainty in the choice of law analysis, the Lauritzen-Rhoditis test should remain the same in all traditional maritime shipping cases—regardless of the defendant’s vessel owner status. The fundamental purpose of the Lauritzen-Rhoditis test is “to assure that a case will be treated [i]n the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum.”[61] Since its inception, this test found its roots in predictability, necessitated by the transient nature of the plaintiff’s work and the fortuitous location of his or her injuries.[62] These circumstances do not change when the vessel owner is not a defendant, as the transient nature of the plaintiff’s work remains the same.[63]

Moreover, even if the defendant does not own the vessel, the vessel and its country of registration remain relevant to all shipboard tort actions.[64] The connection between the plaintiff’s claim and the vessel does not vanish when the shipowner is out of the picture. Regardless of the defendant’s shipowner status, the vessel is still where the plaintiff worked and where the tortious incident occurred, and it has become well-established that “all things done on board” should be controlled by the laws of the “nation to which the vessel belonged.”[65] Therefore, the law of the flag and its heightened significance remain applicable in all traditional maritime cases.[66]

Conclusion

At the inception of the Lauritzen-Rhoditis test, “overarching concerns of comity, pragmatism and predictability led the Lauritzen Court to declare that ‘the weight given to the ensign overbears most other connecting events in determining applicable law.’”[67] However, the Fifth Circuit recently undermined this principle by indicating that the law of the flag may not receive deferential treatment in every traditional maritime case.[68] Rather than altering the Lauritzen-Rhoditis test when the shipowner is not a party to the claim, Fifth Circuit courts should prioritize simplicity and predictability and apply the same test that has worked for decades.[69]

[1] See generally Ganpat v. E. Pac. Shipping PTE., Ltd., 642 F. Supp. 3d 524, 533–36 (E.D. La. 2022), rev’d and remanded Ganpat v. E. Pac. Shipping PTE, Ltd., 100 F.4th 584 (5th Cir. 2024).

[2] See generally id.

[3] See generally id.

[4] See generally id.

[5] See Lauritzen v. Larsen, 345 U.S. 571, 592 (1953).

[6] Carbotrade S.p.A. v. Bureau Veritas, 99 F.3d 86 (2d Cir. 1996) (quoting Carbotrade S.p.A. v. Bureau Veritas, 901 F.Supp. 737, 743 (S.D.N.Y. 1995)).

[7] Ganpat v. Eastern Pacific Shipping PTE, Ltd., 100 F.4th 584, 595 (5th Cir. 2024).

[8] See generally id.

[9] See id. at 589.

[10] Lauritzen v. Larsen, 345 U.S. 571, 582–93 (1953); Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970).

[11] Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 282 (5th Cir. 1991) (first citing Lauritzen v. Larsen, 345 U.S. 571, 582–93 (1953); and then citing Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970)). Some courts articulate the fourth factor as “allegiance of the defendant shipowner.” See Lauritzen, 345 U.S. at 587 (1953). However, in cases where the shipowner is not a defendant, courts look to the allegiance of the defendant, regardless of his or her title. See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1120 (5th Cir. 1995).

[12] Fogleman, 920 F.2d at 282.

[13] Id.

[14] Id.

[15] Id.

[16] Ganpat v. E. Pac. Shipping PTE, Ltd., 100 F.4th 584, 591, 597 (5th Cir. 2024).

[17] Id. at 596–97.

[18] Id. at 594–97.

[19] Id. at 592 (quoting Solano v. Gulf King 55, 212 F.3d 902, 905–07 (5th Cir. 2000)).

[20] Lauritzen v. Larsen, 345 U.S. 571, 585 (1953).

[21] Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 308 (1970).

[22] Ganpat, 100 F.4th at 592–93.

[23] Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 283 (5th Cir. 1991).

[24] Id. at 282–83.

[25] See id.

[26] Lauritzen v. Larsen, 345 U.S. 571, 585 (1953).

[27] Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82, 86–87 (9th Cir. 1980).

[28] See, e.g., Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 587 (2d Cir. 2005); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1120 (5th Cir. 1995); Ganpat v. E. Pac. Shipping PTE., Ltd., 642 F. Supp. 3d 524, 531 (E.D. La. 2022), rev’d and remanded Ganpat v. E. Pac. Shipping PTE, Ltd., 100 F.4th 584 (5th Cir. 2024).

[29] Rationis, 426 F.3d at 586.

[30] Id. (quoting Carbotrade S.P.A. v. Bureau Veritas, 99 F.3d 86, 90 (2d Cir.1996)).

[31] Coats, 61 F.3d at 1120.

[32] Id.

[33] Id.

[34] See id.

[35] See generally id. In its explanation, the court stated, “MIS is not a shipowner and therefore [the law of the flag] has no specific application to it.” Id. at 1120. It did not elaborate on whether this reasoning should extend to traditional maritime cases where the law of the flag is ordinarily given “cardinal importance.”

[36] See Ganpat v. E. Pac. Shipping PTE., Ltd., 642 F. Supp. 3d 524, 533–36 (E.D. La. 2022).

[37] Id. at 530.

[38] Id.

[39] Id.

[40] Id. at 531–36.

[41] Id. at 531–32, 534.

[42] Id. at 540.

[43] Id. at 532.

[44] Id. at 532–36 (“Factor two—the law of the flag—is not given any weight by the Court.”).

[45] Id. at 533.

[46] Id. at 537.

[47] Id.

[48] Id. at 537–38.

[49] See id.

[50] See id.

[51] See id.

[52] Ganpat v. Eastern Pacific Shipping PTE, Ltd., 100 F.4th 584, 595 (5th Cir. 2024).

[53] Id.

[54] Id. at 591 (quoting Solano v. Gulf King 55, 212 F.3d 902, 906 (5th Cir. 2000)).

[55] See id. at 595.

[56] Id. at 595. (emphasis added).

[57] Id.

[58] Id.

[59] See id.

[60] See id.

[61] Lauritzen v. Larsen, 345 U.S. 571, 591 (1953).

[62] See id. at 585.

[63] See generally id. The Lauritzen court explained that the law of the flag receives heightened significance based on the transient nature of the plaintiff’s work. It did not attribute its importance to the defendant’s shipowner status.

[64] See generally id.

[65] Id. at 585–86.

[66] See generally id.

[67] Carbotrade S.P.A. v. Bureau Veritas, 99 F.3d 86, 94 (2d Cir. 1996) (dissenting, J. Van Graafeiland) (quoting Lauritzen, 345 U.S. at 585).

[68] See Ganpat v. Eastern Pacific Shipping PTE, Ltd., 100 F.4th 584, 595 (5th Cir. 2024).

[69] See generally Lauritzen, 345 U.S. at 591.

by Zack Crawford

Introduction

The Louisiana legislature equipped private citizens with an effective weapon to combat deceptive and misleading commercial activity when it passed the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA).^[1] But does LUTPA’s economic protection guard against the State’s own conduct? A recent Louisiana Supreme Court decision seemed to blunt LUTPA’s edge when the Court held that a LUTPA cause of action could not be stated against the State because it did not participate in “trade or commerce,” despite transacting in its private capacity.^[2] In Law Industries, LLC v. Department of Education, the State of Louisiana entered into a contract for an elementary school refurbishment but terminated the project just a few months after work began.^[3] Although the general contractor was able to pursue a breach of contract claim, a subcontractor on the project could only allege a LUTPA violation because it lacked privity of contract with the State.^[4] However, the Supreme Court determined that even though the contractors participated in trade or commerce when they entered into the refurbishment agreement, the State did not engage in such trade or commerce because it was acting in “furtherance of its governmental function.”^[5] Because the State almost always pursues its governmental function when it takes action, the Law Industries decision likely creates a de facto LUTPA immunity for governmental entities. As a result, future market participants could be left without a remedy when the State acts unfairly. Continue reading →

by Paige Meno

Introduction

Picture a bustling metropolis where a seemingly innocent storefront is a façade for a sprawling criminal network. Behind its polished exterior lies a web of deceit, funneling illicit funds through intricate corporate structures designed to evade the law. As law enforcement agencies scramble to solve this knot of financial crime, they face a formidable adversary—the veil of corporate anonymity. Enter the hypothetical scenario of “XYZ Consulting,” a fictitious entity entangled in the crosshairs of suspicion. Despite its appearance as a legitimate business, whispers of nefarious dealings lurk beneath the surface. Unbeknownst to authorities, XYZ Consulting serves as a critical cog in the money laundering machinery, facilitating the flow of dirty money through its labyrinthine corporate structure. Continue reading →