Case on a Wire - Last Minute Fax Filing

The Louisiana Supreme Court has ruled 6-1 that the funding method for the private school tuition voucher program approved by the Legislature last year is unconstitutional under La. Const. art. VIII, Sect. 13(B). The decision leaves uncertain the status of the approximately 8,000 students who had been approved for vouchers for the 2013-2014 school year.In Louisiana Federation of Teachers et al. (No. 2013-CA-0120), the Court held that once funds are dedicated to the state's Minimum Foundation Program for public education, the Constitution prohibits the use of those funds for the tuition costs of nonpublic schools and nonpublic entities. The Court reasoned that it could not sanction the voucher program's funding method when the source of those funds specifically mandated that they be spent on public education. The Court rejected the argument that the voucher program violated the constitutional requirement that a legislative bill have only "one object."The voucher program was part of a 2012 school reform program that allowed the State to offer vouchers to a large number of Louisiana students and to expand the number of privately managed charter schools.The Jindal administration has pledged to continue the program. In response to the ruling, Jindal stated, "We're disappointed the funding mechanism was rejected, but we are committed to making sure this program continues and we will fund it through the budget."The passing of the voucher program legislation was a high-profile affair prominently covered by local and even national media. In this context, the Court felt it advisable to confirm the Supreme Court's role in approving or rejecting legislation. The first page of the opinion includes the following quote:

The determination of how to best provide for the education of children is not the role of the court in this matter. We defer that determination to those more learned in the fields of education and public policy. The court's role is to evaluate the law set forth in the constitution to determine whether the matters addressed by the legislature comply with the relevant constitutional provisions and "not to legislate social policy on the basis of our own personal inclinations." State v. Smith, 99-0606, 99-2094, 99-2015, 99-2019, p. 11 (La. 7/6/00), 766 So. 2d 501, 510. [Emphasis added]

One might reasonably expect that this will not be the last time the Louisiana Supreme Court will be asked to consider the voucher program.

“Historically, privacy was almost implicit, because it was hard to find and gather information. But in the digital world, whether it's digital cameras or satellites or just what you click on, we need to have more explicit rules - not just for governments but for private companies.” -Bill Gates

Supreme Court oral arguments were heard earlier this week in Carpenter v. United States, a closely watched case which stands to impact what privacy means in our digital age. The case will decide whether law enforcement is permitted to gather cellphone data from third-party service providers like Verizon and AT&T without a warrant. Carpenter presents the latest installment in the eternal struggle between the need for safety and the desire to prevent a surveillance state.

In Carpenter, the FBI investigated a series of robberies at Radio Shack and T-Mobile stores in Detroit. Suspecting that Carpenter was operating as a “getaway driver,” the FBI sought and obtained without a warrant the location data for his cell phone. This data revealed that Carpenter (or at least his cell phone) was near the stores at the times of the robberies­­­­­­––damning evidence.

Carpenter argued that the government’s collection of his cell photo data was a “search” under the 4th Amendment, a "search" which would require a warrant supported by “probable cause.” The government maintained that privacy concerns were addressed when law enforcement complied with the Stored Communications Act which allows law enforcement access upon a showing that the information sought is "relevant and material" to an ongoing investigation. The government further argued that there is no reason to afford greater protection to cell phone data than given to other data such as bank records and dialed telephone numbers which can be obtained without a warrant.

The issues presented in Carpenter are not new, but are magnified by the awesome power of advancing technology to track our movement and assembly with others. The Louisiana court in State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So. 3d 49, held that an exclusive user of a cell phone did not have a reasonable expectation of privacy to the call detail record log associated with the phone. The court reasoned that access to the information in the detail record log was voluntarily surrendered by the defendant to the phone’s providers. However, in United States v. Jones, 132 S. Ct. 945 (2012), the United States Supreme Court found that the installation of a GPS device on a vehicle to monitor the vehicle’s movement was a “search” under the 4th Amendment. Carpenter addresses the intersection of these two cases.

By carrying a cell phone you know can track your movements, do you lose any reasonable expectation of privacy? Or, would allowing warrantless access to this information be akin to the prohibited GPS search in United States v. Jones? The Supreme Court will soon decide. How it chooses will impact criminal litigation and by extension how cell phone data is regarded in civil suits. More importantly, it may also impact the relationship between citizens and their government.

Collin LeBlanc is a Keogh Cox partner and experienced litigator who concentrates in injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all-too-active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

The defense is based upon the premise that an “open and obvious” defect is non-hazardous, because a reasonably-attentive plaintiff could or should have avoided the harm in the exercise of due care. Before Broussard, courts routinely ruled that a defendant owed no duty to a plaintiff when the alleged defect was “open and obvious.” Following Broussard, courts began to shift the analysis from a question of duty (an issue of law) to a factor that should be considered when analyzing a potential breach of that duty (an issue of fact). As such, some courts concluded that the defense was not properly addressed at the summary judgment stage.

In October 2014, the Supreme Court appeared to alter course when it affirmed a summary judgment granted on grounds that the alleged defect presented an open and obvious condition. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), — So.3d — 2014 WL 5394087. In reaching this decision, the Bufkin Court focused on the duty element of plaintiff’s case, which seemingly contradicted prior interpretations of Broussard. Thereafter, the Court went even further, affirmatively stating that “[a]ny reading of Broussard interpreting it as a limit on summary judgment practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650.

According to Professor Church, Bufkin and Allen reflect a shift back to an analysis of the open and obvious defense on the duty level and remove any doubt regarding whether summary judgment is appropriate in this setting. Professor Church anticipates that the Supreme Court will continue to clarify this doctrine in future decisions. For now, Broussard remains an obstacle, albeit shrinking, in the defense of trip and fall claims.

Author: C. Reynolds LeBlanc