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3/23/01

SUPREME COURT OF LOUISIANA
No. 00-CC-1750 CHRISTA DUPLANTIS VERSUS LOUISIANA BOARD OF ETHICS c/w No. 00-CC-1956 BREAZEALE, SACHSE, & WILSON, L.L.P. VERSUS LOUISIANA BOARD OF ETHICS ON WRITS OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, LOUISIANA BOARD OF ETHICS VICTORY, J. We granted writs in these two unrelated cases, consolidated for oral argument, to consider whether it was proper for the court of appeal to have reviewed advisory opinions issued by the Louisiana Board of Ethics (the "Board"). After reviewing the record and the applicable law, we hold that the provision of La. R.S. 42:1142 which provides that "[a]ny advisory opinion issued to any person or governmental entity by the board or panel . . . is subject to the supervisory jurisdiction of the appellate court . . ." is unconstitutional; therefore, the appellate courts are without jurisdiction to review such advisory opinions. FACTS AND PROCEDURAL HISTORY Duplantis v. Board of Ethics On August 30, 1996, Christa Duplantis, through the Assistant Attorney for the Terrebonne Parish Consolidated Government, sought an advisory opinion from the
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Louisiana Board of Ethics. The substance of that request was as follows: I have been requested by Council member, Christa Duplantis, to obtain an opinion from the Board of Ethics for Elected Officials regarding her potential employment with two local hospitals. Christa Duplantis was elected in 1995 to serve as a Terrebonne Parish Consolidated Government council member for a four year term which began in January 1996. Christa Duplantis is a Registered Nurse who desires to obtain employment with the Terrebonne General Medical Center ("TGMC") or the Leonard Chabert Medical Center ("LCMC"). TGMC is owned and operated by Hospital Service District No. 1 of the Parish of Terrebonne ("hospital district"). LCMC is a State owned and operated facility. Particularly, Duplantis wanted the Board's opinion as to whether such employment would be prohibited by La. R. S. 42:1113(A). That statute provides, in pertinent part: No public servant . . . or member of such a public servant's immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant. La. R.S. 42:1113(A). On October 7, 1996, the Board of Ethics responded with Advisory Opinion 96147 which contained two principle conclusions. First, the Board concluded that La. R.S. 42:1113(A) would prohibit Duplantis from providing nursing services to Terrebonne General because it was part of the Terrebonne Parish Consolidated Government. Second, the Board found that the Code of Ethics would not prohibit Duplantis from seeking employment from Leonard Chabert because it was an agency of the state, not an agency of Terrebonne Parish Consolidated Government. On November 12, 1996, Duplantis applied for a writ of certiorari from the First Circuit Court of Appeal pursuant to La. R.S. 42:1142(A) as it read at that time.1

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At the time Duplantis filed her writ application, La. R. S. 42:1142(A) provided:

Whenever action is taken against any public servant or person by the board or panel or by an agency head by order of the board or panel, or whenever any public servant or person is aggrieved by any action taken by the board or panel, he may appeal therefrom to the Court of Appeal, First Circuit, if application to the board is made 2

In 1997, while the case was pending before the First Circuit, this court handed down its original opinion in Transit Management of S.E. La. v. Commission on Ethics for Pub. Emp., 96-1982, p. 2 (La. 12/2/97), 703 So. 2d 576, 577 [hereinafter TMSL], which found that an advisory opinion was not a "preliminary, procedural, or intermediate action" within the meaning of La. R.S. 42:1142(A). Consequently, this court reasoned: "There is no constitutional or legislative authority for judicial review of an advisory opinion rendered by the [Board of Ethics]." Id. Following that original opinion in TMSL, the First Circuit dismissed Duplantis's writ on December 30, 1997. See Duplantis v. Board of Ethics for Elected Officials, 96-2416, p. 1 (La. App. 1 Cir. 12/30/97) (per curiam) (unpublished opinion). The original TMSL opinion had further reasoned that a "person who will be ultimately affected by a ruling of the [Board of Ethics], if and when a complaint is filed, can file an action for a declaratory judgment in the district court to determine the legal correctness of the [Board's] opinion on conduct or status." TMSL, 96-1982 at 3, 703 So. 2d at 578. Based on this language, on February 3, 1998, Duplantis filed an action in the district court for a declaratory judgment that, if she were successful, would hold that the advisory opinion of the Board of Ethics barring her employment with Terrebonne General was incorrect. On April 4, 1998, in response to the rehearing application by the Board of Ethics in TMSL, this Court otherwise denied the rehearing but withdrew the reference in the TMSL opinion to the availability of declaratory relief for a person in Duplantis's position, reciting that the statement was dicta. See TMSL, 96-1982, p. 1 (La. 4/4/98),

within thirty days after the decision of the board becomes final. Any preliminary, procedural, or intermediate action or ruling by the board or panel is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. The Court of Appeal, First Circuit, shall promulgate rules of procedure to be followed in taking and lodging such appeals. 3

710 So. 2d 792, 792 (on rehearing). Instead, we stated that: "Issues as to other possible `remedies' for persons affected by advisory opinions were not before us, and problems with specific remedies are properly addressed when such issues are squarely presented." Id. On June 22, 1998, the district court in this matter sustained an exception of lack of subject matter jurisdiction filed by the Board of Ethics and dismissed Duplantis's case. She appealed to the court of appeal. While Duplantis's case was before the court of appeal, the Legislature, by Acts 1999, No. 252,

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