Opinion
No. 96-CC-2005
June 20, 1997 Rehearing Denied September 5, 1997
ON REHEARING
On application for rehearing, the Board concedes that the district court has subject matter jurisdiction to adjudicate a constitutional challenge to the hearing procedure that the Board had been using prior to the decision in In re: Georgia Gulf Corp. v. Board of Ethics for Public Employees, 96-C-1907 (La. 5/9/97); ___ So.2d ___. However, pointing out that theGeorgia Gulf decision held that the hearing procedure used by the Board in that case did not afford due process and remanded the case to the Ethics Commission for a new hearing, the Board argues that it is not necessary, in view of theGeorgia Gulf decision, to remand the present case to the district court because (1) there has been no hearing in this case to review and (2) the future hearing will be conducted before a new Board which is bound to follow the dictates ofGeorgia Gulf. We agree with this argument. In view of our Georgia Gulf decision, the procedure of the Board must change to comport with the views expressed therein; hence it is no longer necessary to adjudicate the constitutionality of the procedures formerly employed by the Board. Relator will be fully protected in the future hearing by the right to assert on appeal any due process violations or other complaints about the hearing procedure used by the Board, or to otherwise seek any appropriate review of ruling and procedures before, during or after the hearing. Kimball, J., notes to deny the application and assigns reasons.
The Louisiana Board of Ethics replaced the Board of Ethics for Elected Officials on January 1, 1997. See La. Acts 1996, No. 64 1st ex. Session.
Johnson, J., notes to deny the application with reasons.
I would deny the rehearing. In our original decision, we held that the district court had subject matter jurisdiction to hear Senator Jones' petition for injunctive relief and a restraining order, and we remanded the case to the district court for consideration in light of Georgia Gulf.
I believe that Senator Jones is still entitled to present his due process challenge to the procedures that the New Board of Ethics has in place. Senator Jones should be able to urge any due process violations at this point, with these procedures, rather than being subjected to them and having only a remedy on appeal.
I would deny the Board's application for rehearing. The district court has subject matter jurisdiction of the plaintiff's petition for injunctive relief and restraining order. In my view, the district court has the discretion, after conducting a hearing and taking evidence, to decide whether the plaintiff is entitled to injunctive relief in light of this court's pronouncement in In re Georgia Gulf Corporation, 96-1907 (La. 5/9/97). I believe it is inappropriate to pass on the merits of plaintiff's injunction petition, which is properly interposed in district court, based on argument contained in a rehearing application.