JOHN BEL EDWARDS, in His DOCKET NO. DIV. Official Capacity as Governor of the State of Louisiana SECTION NO. versus 19th JUDICIAL DISTRICT COURT JEFF LANDRY, in His Official PARISH OF EAST BATON ROUGE Capacity as Attorney General of the State of Louisiana STATE OF LOUISIANA FILED: DEPUTY CLERK PETITION FOR WRIT OF MANDAMUS ‘The Petition of JOHN BEL EDWARDS, in his official capacity as Governor of the State of Louisiana, whose office is in the Parish of East Baton Rouge, respectfully represents: 1 Made defendant herein is JEFF LANDRY, in his official capacity as Attomey General of the State of Louisiana. 2. Petitioner, as the Governor of the State of Louisiana, is “the chief executive officer of the state,” and he is charged by the Constitution with “seefing] that the laws of the state are faithfully executed.” La. Const. article IV, § 5(A). In that capacity and to that end, Petitioner has directed and continues to direct various executive agencies and departments of the State to enforce and faithfully execute the laws of the State. 3 Defendant is the executive head and chief administrative officer of the Department of Justice and “the chief legal officer of the state.” La. Const. article IV, § 8; La. RS. 36:701(B). ‘The Department of Justice is domiciled in Baton Rouge, and it has the power to sue and be sued. La. R.S. 36:701(A). By virtue ofhis office, the Defendant is charged with “the assertion or protection of any right or interest of the state.” Id. He is, however, as the head of a Department within the executive branch, subject to the policy decisions of the head of that branch, i.e, the Governor. And as the State’s lawyer, he is ethically required by the Rules of Professional Conduct promulgated by the Louisiana Supreme Court to “abide by his] client’s decisions concerning the objectives of representation” and to “consult with [his] client as to the means by which they are to be pursued.” La. S. Ct. Rules, RP.C. 1.2(a). His ex officio representation of the State “does not constitute an endorsement of {his} client's political, religious, economic, social or moral views or activities.” Id, 1.2(b). 4 Notwithstanding the grant of representation authority to the Attomey General, Louisiana constitutional law has long recognized the power of the Legislature to authorize, whether explicitly or implicitly, members of the executive branch to retain private counsel other than the Attorney General to advise and represent them in their faithful enforcement and execution of the laws of the State. See, e.g., Ricks v. Department of State Civil Service, 200 La. 341, 374, 8 So.2d 49, 660 (1942) (“the framers of the Constitution never intended [La. Const. article VII, § 56 (1921), which empowered the Attomey General to ‘attend to, and have charge of all legal matters in which the State has an interest"] to operate as a limitation upon the Legislature to prohibit it from passing any act, calling for the employment of counsel where it deemed such was necessary"); Saint v. Allen, 172 La. 350, 364, 134 So. 246, 250 (1931) (“{t]he commission has the implied power to employ counsel ... arising out of the power to sue and be sued”)5 Pursuant to this authority, the Legislature has enacted statutes governing the retention of private counsel by entities within the executive branch and setting forth the procedures for such employment of private counsel, specifically La. RS. 42:262 and La. R.S. 49:258. 6. La. RS. 42:262 is primarily concemed with the method of compensation of private counsel retained by the attorney general or any state agency, board or commission, exclusive of public postsecondary education institutions, bond counsel, and generally, counsel retained to defend the State in tort actions. The statute prohibits contingency fee contracts [§ 262(A)], provides that attomey fee awards are the property of the State [§262(B)], prohibits payment of any private counsel by a third party [§ 262(C)], and requires the keeping of records of hours and expenses and sets a maximum hourly fee [§ 262(D)]. Subsection F provides additional conditions for the retention of a so-called “special attorney or counsel,” providing in Subsection F(1): In the event it should be necessary to protect the public interest, for any state board or commission to retain or employ any special attomey or counsel to represent it in any special matter for which services any compensation is to be paid, the board or commission may retain or employ such special attorney or counsel solely on written approval of the governor and the attorney general and pay only such compensation as the governor and the attorney general may designate or approve in the written approval. The approval shall be given in their discretion upon the application of the board or commission. Read alone, this statute would appear to grant the attomey general (along with the governor) discretion in approving the retention of special attomeys or counsel by state boards and commissions, and the statute is silent as to the retention of such counsel by other executive agencies that are not boards or commissions,1 But La. RS. 42:262 cannot be read alone; by its own terms, La. RS. 49:258 supersedes La, RS. [Link] Notwithstanding the provisions of any other law to the contrary and specifically the provisions of any law that authorizes the state or a state agency to appoint, employ, or contract for private legal counsel to represent the state or a state agency, including but not limited to the provisions of RS 42:261, 262, and 263, and RS. 40:1299.39(E), any appointment of private legal counsel to represent the state or a state agency shall be made by the attorney general with the concurrence of the commissioner of administration in accordance with the following procedure: (Emphasis added.) The statute then sets forth a procedure whereby appointments are to be made according to a written procedure, with the govemor, attomey general, and commissioner of administration together establishing both the procedure and the minimum qualifications for the private attorneys, with both the procedure and the qualifications to be published “at least annually in the Louisiana Bar Journal or such other publication as will reasonably ensure dissemination to the membership of the Louisiana State Bar Association.” La. R.S. 49:258(1). 8 La. RS. 49:258 thus, by its terms, supersedes the discretion set forth with respect to boards and commissions in La. R.S. 42:262(F)(1), and replaces it with a ‘ministerial process for approval of private counsel, by both the Division of Administration and the Attomey General, and appointment by the Attorney General. Defendant has at least partially complied with the provisions of La. R.S. 49:258 by publishing the minimum qualifications in the Louisiana Bar Journal, most recently at 64 La, Bar J. 176 (August-September 2016), a copy of which is attached hereto as Exhibit A. (It should be noted, however, that despite the statutory requirements, neither the Governor nor the Commissioner of Administration participated in the development of the purported “conditions” set 4forth therein.) Defendant, through his Chief Deputy Attorney General, has also acknowledged via memorandum that his ministerial function in the appointment of private counsel is limited to the review of the appointed counsel’s qualifications and fee arrangements, see Exhibit B. 9 Notwithstanding his statutory ministerial duty and his acknowledgment of it, Defendant has refused to perform the ministerial task of approving private counsel contracts and appointing private counsel for numerous executive agencies of the State. 10. ‘Some, but not all, of the private counsel contracts that have been approved by the Division of Administration, but Defendant has refused to approve, are: ‘A. A contract between the Department of State and Shows, Cali & Walsh, LLP, dated August 1, 2016; B. Contracts between the Department of Insurance and Kantrow, Spaht, Weaver & Blitzer, APLC, dated June 7, 2016; and Young, Richaud & Myers, dated June 8, 2016; C. A contract between the Louisiana State Bond Commission and Jones Walker, LLLP,, dated August 3, 2016; D. Contracts between Offices of the Division of Administration and Frilot, LLC, effective August 1, 2016; Kantrow, Spaht, Weaver & Blitzer (A Professional Law Corporation), dated August 8, 2016; and Decuir, Clark & Adams, LLP, dated September 1, 2016; E, Contracts between the Department of Economic Development with the Law Offices of Joseph Looney, effective July 10, 2016; and King, Krebs & Jurgens, PLLC. effective August 1, 2016;F. A contract between the Department of Natural Resources and Oats & Marino, APC, dated July 7, 2016; G. An amendment to a pre-existing contract between the Department of Public Safety & Corrections and Patrick Jackson, APLC, dated June 2, 2016; H. A contract between the Department of Transportation and Development and Theodore “Ted” L. Jones, effective March 1, 2016; 1. A contract between the Military Department and Taylor, Porter, Brooks & Phillips L.L-P., dated August 9, 2016; J. A contract between the Louisiana Workforce Commission and Cravins ‘Trosclair A PLC, dated August 8, 2016; K. A contract between the Coastal Protection and Restoration Authority and Dunlap & Fiore, LLC, dated July 22, 2016; L. A contract between the Board of Pharmacy and Celia R. Cangelosi, Attomey at Law, dated August 3, 2016; [Link] between the Office of Elderly Affairs and the Advocacy Center, dated July 1, 2016; and Jane A. Thomas, dated July 1, 2016; N. Contract between Southeastern Louisiana University and Seale and Ross dated May 5, 2016; ©. Contract between the Louisiana State Licensing Board for Contractors and Bankston and Associates, LLL. effective August 1, 2016; and P. Eleven contracts between various firms and the Patients Compensation Fund. nM ‘The Commissioner of Administration has approved all of these contracts. All of the lawyers and law firms who are parties to the contracts meet, and generally far exceed, the minimum qualifications set forth by Defendant. None of 6the fee arrangements set forth in the contract violate La. R.S. 42:262 in any way. Yet Defendant has refused to perform his ministerial duty of approving the ‘contracts and appointing these attomeys. 12. Defendant has explicitly most of rejected the contracts on the grounds that the contracting attomeys should not have agreed not to discriminate in employment and the rendering of services in accordance with Executive Order No. JBE 2016- 11 13, As an example, the Attorney General has rejected a contract between the State Bond Commission and the two law firms retained as bond counsel for the issuance of general obligation bonds for the State of Louisiana. In so doing, the Attomey General supplied the following reasoning: The contracts you submitted to retain outside counsel are being returned to you without approval from our office. The Attomey General requires antidiscrimination clauses in legal contracts to be written in conformity with State and Federal law; therefore, these provisions should not contain language exceeding what the law requires. Additionally, On May 14, 2016, the Attorney General issued an opinion regarding the Governor's Executive Order BE 16-11, which can be found on our website. This explanation does not provide any further description of the state or federal laws to which the Attorney General is referring, 14, Notwithstanding the provisions of RP.C. 1.2(b), Defendant apparently believes that it is necessary that private attorneys who contract with entities within the executive branch must retain the right to discriminate against persons on the basis of sexual orientation and gender identity, and that state departments, agencies, boards, and commissions cannot comply with Executive Order No. JBE 2016-11.15. Defendant’s ongoing refusal to perform his ministerial duty of approving private counsel contracts and appointing the attorneys is causing ever-increasing disruption of the ability of the executive branch to perform the tasks of governing the State. 16. Accordingly, Governor Edwards petitions the Court for the immediate issuance of an alternative writ of mandamus to Defendant, Attomey General Jeff Landry, setting rule to show cause why the writ of mandamus should not be made peremptory, in accordance with L. C.C.P. article 3782. The writ should compel Defendant to perform his statutory ministerial duty to give written approval of the choice of counsel of the executive branch entities and to appoint said WHEREFORE, Plaintiff, John Bel Edwards, in his official capacity as Governor of the State of Louisiana, prays that an altemative writ of mandamus issue, stating that the role of Defendant, Jeff Landry, in his official capacity as ‘Attomey General, in approving private counsel contracts is ministerial in nature and limited to a review of private counsel’s qualifications and fees; and directing Defendant to approve the pending private counsel contracts for executive branch entities and to appoint said counsel, or altematively to show cause at a date and time to be set by the Court why this altemative writ should not be made peremptory; that this Petition and said alternative writ be served upon Defendant, Jeff Landry, at 1885 N. Third Street, Baton Rouge, LA 70802; and that all costs of, these proceedings be taxed to defendant.PLEASE SERVE: Jeff Landry Attomey General, State of Louisiana 1885 North Third Street Baton Rouge, LA 70802 Special Counsel P.O. Box 94396 617 North Third Street, 12th Floor Baton Rouge, Louisiana 70804-9396 Attorneys for Plaintiff GOVERNOR JOHN BEL EDWARDSJOHN BEL EDWARDS, in His DOCKET NO. » DIV. Official Capacity as Governor of the State of Louisiana SECTION NO. versus 19th JUDICIAL DISTRICT COURT JEFF LANDRY, in His Official PARISH OF EAST BATON ROUGE Capacity as Attomey General of the State of Louisiana STATE OF LOUISIANA FILED: DEPUTY CLERK RDER Considering the Petition for Writ of Mandamus, ITIS ORDERED that: 1. Certified copies of the Petition and of this Order be served on defendant, Jeff Landry, in his official capacity as Attorney General of the State of Louisiana, at 1885 North Third Street, Baton Rouge, LA 70802; 2. An alternative writ of mandamus issue, stating that the role of Defendant, Jeff Landry, in his official capacity as Attomey General, in approving private counsel contracts is ministerial in nature and limited to a review of private counsel's qualifications and fees; and directing Defendant either to approve the contracts and appoint the counsel as cited in the Petition, or to show cause to the contrary on the __ day of. 2016, at o'clock, am, and 3. Defendant, Jeff Landry, in his official capacity as Attomey General of the State of Louisiana, show cause on the same date and hour why the 10alternative writ of mandamus now ordered to be issued should not be made peremptory at his costs. Baton Rouge, Louisiana, this __day of 2016. JUDGE, 19TH JUDICIAL DISTRICT COURT, PLEASE SERVE: Jeff Landry Attomey General, State of Louisiana 1885 North Third Street Baton Rouge, LA 70802 uMinimum Qualifications, Conditions for Appointment as Special Assistant Attorney General ‘The minimum qualifications and ‘onions for eppiniment «Special ‘Asitant Atomey General, eed tel ‘The storey shall be sdmited to practice aw inthe state of Louisiane ‘este actionispendinginacober Ste, inwhicheventtbeanomey shall ‘be amie to practice inthe sate ‘where the acon i pening IF the action is pending before a fede cour or ote court of pei ‘mision requirements, he atoeey Sul be admited ro practice before sch court, ‘The atoney shall not be under rspenionby the olnansSepeme Courtorey courtin which tbe ction ‘spending. The tome and any aiomey with whom be is engaged in the practice flaw shall notrepretentany paint {any tort claim against the sat andor ts departments, commissions, ours, genie ofan oficial ‘oployeesunlet pecially whved ‘Roriagby te Atomey Geerland ‘he Off of Risk Managemen. ‘Theattrey shall netave a coafict ofits provide the Rulerof Profesonl Conductofhe Lina State Bar Asoiaton, ‘Toe atomey shall have and ainsi professional maimctice insurance ‘uthminimum overageof Seal Pe claim wit an aggregate of $1 milion, ‘Teeatomeymustbeasubseertoan letoni bling program designated bythe Ofc of Risk Management 76] August/September 2016 8, Theatoeyshouidhves Mandal ubell rain of bv" orb 9, The attorney should have been admitted to and engaged inthe Practice of lw for a minimum of fhe year, 10, The requirements set forth ia 8 ad 9 may be waived by the Atormey (Gear in which evet the storey vl be placed in probationary Stas fora period of three year. During the period of probation, the attorney's performance will tbe evalatd aonaly by the Sate Risk Adminiator Claims and the ‘Assistant Director for Litigation ‘Management ofthe Office of Risk Management nd the Dict ofthe Litigation Progam of te Louisiana Deparment of Fase In the event that the attorney's performance isacepabe ding he CGreejer probation period, be shal be removed fom probationary ‘tata In the ever the alorey's performance natty. bem eremoved fom heprobatoasy ist ‘ot atthe discretion ofthe Sate Risk 10 Additional Requirements for the Defense of Medical Malpractice Claims 1, Theatlorey should ave tire yeas! experince inthe defense of medical ‘malpractice claims 12 Theatomey sboudhaveparcpted ‘as councl of ord inlet 190 ‘medial malpractice ta. 13, Profesional malpractice iit shall ‘beat east $1 milion per lain wth amaggegate of$1 lion, 14 Requirements 11 and 12 may be weaved by the Attorney Geaecl In wise event the atoey wil be ‘laced on probation as to medial Talpracice defense ae provided ia paragraph 10 above Conditions 1. Any attorney appointed by the ‘Atorney General serves at the Pleasure ofthe Anomey General Sdkmay be removed by the Atomey (General aay me witout conse 2 Office of Risk Management may withdraw its concamence of ay Morey only for enue 2 All contracts must comply with the Bshical Standards for Public Servants, Tle 42, een 1, Pat oft Lonisins Revised Sites, ‘aching butuotinstedo,La RS, ean EXOT AState of Louisiana ‘ePanTVEuT OF USTCE OFFICE OFTHE ATORNEY GENERAL Po, sox sans sxTOn ROUGE 7a 3005 JeffLandey ‘ory Gene MEMORANDUM. TO: All Agency Heads, Department Undersecretaries, Business Managers, Board and Commissions FROM: _ Bill Stiles Chief Deputy Attorney General DATE: August 9, 2016 RE: Professional Legal Contracts Review Procedure In accordance with RS. 49:258, the appointment of private legal counsel to represent the State shall be made by the Attomey General with concurrence of the Commissioner of Administration. Effective immediately, the Office of the Attomey General will be reviewing all Professional Legal Contracts for attorney qualifications and fee arrangements only. All other provisions of the contract will bbe approved by the Office of State Procurement pursuant to R.S. 39:1595.1 If you have any questions, please contact Lauren Barbalich at 225-326-6000 or barbalich@[Link].