If the House and Senate, together, giveth, can the House, alone, taketh away?
That was the constitutional question before a state judge in Baton Rouge last week in an online hearing that provided the public — those who could squeeze in, virtually, to an online courtroom — with an example of complex legal procedure and a refresher course in middle school civics.
There also was an impromptu example of what can happen when courtroom decorum is ignored — even in a virtual courtroom. Judge William Morvant, in Baton Rouge, couldn’t order bailiffs to remove one observer. But he could order that the man’s microphone be muted, and it quickly was — the pandemic-age penalty for possible contempt of court. Or, maybe, contempt of Zoom.
The silenced observer, eager for the state to shed coronavirus restrictions imposed by Democratic Gov. John Bel Edwards, was likely unhappy with the outcome of the hearing. It dealt with a petition signed by 65 Republicans in the state House who also want to further ease, or end, the restrictions.
Efforts in the recent special session to curb Edwards’ health-emergency powers were vetoed by Edwards. Anticipating Edwards’ veto, House members turned to a tactic they had flirted with for months, using a little known, never-before-used provision in a 2003 state law. That provision says that a majority of either legislative body can send a petition to the governor that forces him to end a declared state health emergency (and thereby end his restrictions on public gatherings and his mask-wearing requirements).
Thus, the civics lesson: Louisiana has a bicameral Legislature, so how can the governor be forced to do something by unicameral action?
It can’t, argued lawyers for the governor’s office, citing Article Three of the state constitution, which says it takes a majority of each legislative body to make law.
But there also was a textbook issue of checks and balances involved as far as Edwards’ opponents were concerned.
Elizabeth Murrill of Republican Attorney General Jeff Landry’s office (which represented the House Speaker) argued that the 2003 law was passed in both legislative chambers. It doesn’t, she argued, give a single legislative body power to make law, but it does provide a needed check on a governor’s far-reaching emergency powers.
Without it, she said, the governor can effectively make law by executive order.
Morvant, in a case bound for the state Supreme Court, sided with the governor’s office. Edwards’ emergency powers are granted under statutes passed by the Legislature, he said. And it’s up to both the House and the Senate to alter them.
Edwards hailed Morvant’s decision as a victory for public health and science while noting, as he often does, that his emergency orders are in line with guidance from the White House. “I have long said the law some members of the House were attempting to use is unconstitutional and I am pleased the judge agreed,” he said.
Landry, in a statement after the hearing, said the ruling was an example of a judge who “rewrites the law from the bench,” and that it “turns Louisiana into a dictatorship under King Edwards.”
The backdrop for the hearing was a nationwide surge in coronavirus cases. Statewide, Louisiana isn’t faring as badly as other parts of the country but cases are on the increase. Until a vaccine is available the fights over how much to shut down are inevitable.
So are public meetings and court hearings held online — complete with the so-far unavoidable glitches. Aside from the occasional interruption — intended or otherwise — from onlookers Thursday, there were unintended microphone outages, and, at least one incident when one of the participants got somehow, temporarily, nudged out of the online hearing, which was limited to 300 participants and observers.
Even virtual courtrooms can get crowded.
Kevin McGill is an Associated Press reporter based in New Orleans.