Jurisprudence Désorientée: The Louisiana Supreme Court s Theory of Jurisprudential Valuation, Doerr v. Mobil Oil and Louisiana Electorate of Gays and Lesbians v. State

• Author: Jason Edwin Dunahoe
• Position: J.D./B.C.L. Candidate, Paul M. Hebert Law Center, Louisiana State University
• Pages: 679-698

Page 679

J.D./B.C.L. Candidate, Paul M. Hebert Law Center, Louisiana State University.

I Introduction

"What is the law?" ¹ This question is undoubtedly straightforward and fundamental, but in a mixed jurisdiction² such as Louisiana, the answer is anything but simple. Picture a scene that plays out hundreds of times a day throughout Louisiana as well as the rest of the United States. A new client walks into an attorney's office with a particular legal problem. Understandably, the client wants to know if he has a valid legal claim or defense. Provided the attorney is at least moderately acquainted with the area of the law in question, the client will expect that the attorney will, at least, have the capability to find the legal rule that governs his problem.

In a common law state, the attorney could look to the statutory authority, or more simply find a reported case from a appellate court, that answers the legal question posed by his client and closely approximates the given fact pattern. If the judge appointed to the case agrees that the material facts are sufficiently similar, the prior holding³ will control the legal conclusions of that judge. In Louisiana, however, relying on the words of the Louisiana Supreme Court, the attorney may or may not, depending upon the case from which the attorney quotes, be able to assure his client that the prior holding of a superior court will control the legal questions of his claim. The cause of this disorder is the confusion of the doctrines of stare decisis and jurisprudence constante. The doctrine of stare decisis generally states that once a legal question has been decided in a prior case the issue may not be reexamined by a subsequent tribunal absent extraordinary circumstances. On the other hand, with jurisprudence constante, judicial decisions are not controlling on issues of law. However, if there exists a consistent line of cases that arrive at the same legal conclusions using sound logical reasoning, then the previous rulings are highly persuasive and not controlling. The Louisiana Supreme Court has not been clear as to the exact weight accorded to prior cases. As a result, attorneys, and even Page 680 judges, are confused as to whether the much touted civil law concept of jurisprudence constante truly controls.

On March 28, 2002, the Louisiana Supreme Court, in the case of Louisiana Electorate of Gays and Lesbians, Inc. v. State,⁴ handed down a decision that could have fundamentally changed the way legal practitioners viewed judicial decisions in Louisiana. But, in reality, the court simply stated what legal practitioners, both judges and attorneys, in the state have accepted for quite some time: " . . . the law is what this court has announced it to be . . . "⁵ In some sense courts necessarily make law; the judgments and rulings of the courts are binding rules for the parties to the actions. However, in the sense of prospective rules, or norms that will apply to future disputes, this level of precedential valuation may be unwarranted in Louisiana.⁶

The opinion in Louisiana Electorate is particularly unusual when viewed in light of the same court's decision less than two years earlier in Doerr v. Mobil Oil, a case in which the court reiterated its well established support for the civilian approach to precedent - jurisprudence constante.⁷ Is it that decisions from this court constitute the "law," or are they merely secondary or persuasive sources of law not to be relied on as the "law," as is suggested in the comments to Civil Code article 1?⁸ Or, is the court attempting to articulate a dual standard for precedent in which different areas of the law are subject to different precedential rules? This lack of clarity creates great confusion and frustration for practitioners, as well as legal professors, in their efforts to represent their clients or decide cases in the proper manner with justifiable confidence. Thus, the Louisiana Supreme Court should clarify its theory of judicial precedential valuation.

Part II of this comment examines the two cases of Doerr and Louisiana Electorate that have illustrated the confusion over the proper weight that should be given to judicial decisions. Subsequently, Part II (C) discusses the two theories of jurisprudential valuation, jurisprudence constante and stare decisis, with emphasis given to germane differences and similarities between the two. Part III analyzes the distinctions between jurisprudence constante and stare decisis. The Page 681 distinction between public law and private law in mixed jurisdictions is then examined, illuminating how jurisprudence constante is more appropriate for private law, while stare decisis is more appropriate for the public law. In the final section of Part III, the comment addresses the practical implications of determining precedential value for the practicing attorney or judge in Louisiana. Finally, Part IV of the paper suggests that the courts either adopt stare decisis, the "de facto precedential system" or, alternatively that the courts establish a clear and precise dual valuation system which applies different weight to judicial precedent in the private and public law arenas.

II The Value Of Precedent Is Unclear In Louisiana Supreme Court Caselaw

A Doerr v. Mobil Oil

In deciding the case of Doerr v. Mobil Oil,⁹ the Louisiana Supreme Court overruled its prior decision in Ducote v. Koch Pipeline.¹⁰ The substantive law of both of these cases can be briefly summarized as they have little bearing on the subject of this comment. In both Ducote and Doerr, the Supreme Court was called on to determine the meaning of the "pollution exclusion clause" in comprehensive general liability policies (CGLs). In Ducote, the court held that the pollution exclusion clause in the CGL should be interpreted broadly so as to exclude from coverage under the policy any pollution "regardless of whether the release was intentional or accidental, a one-time event or part of an ongoing pattern of pollution."¹¹ Significantly, this holding represented a departure from the rule announced by the court in South Central Bell Telephon Co. v. Ka-Jon Food Stores of Louisiana, Inc.,¹² which had been widely followed in the state appellate courts and the federal district courts.¹³ This fact was of great importance to the court in Doerr, particularly in its discussion of jurisprudence constante.¹⁴

In Doerr, the court re-examined the interpretation of the pollution exclusion clause announced in Ducote.¹⁵ The court held that the exclusion should not be interpreted as broadly as indicated in Ducote, and that the CGLs should provide coverage only when the accidents Page 682 incidentally involve pollutants and are not events of environmental pollution.¹⁶ In order to justify its departure from the rule announced in Ducote, the Louisiana Supreme Court invoked the well established civilian principle of jurisprudence constante.¹⁷ On numerous occasions in the past and in no uncertain terms, the Louisana Supreme Court has made it clear that the common law doctrine of "stare decisis" is not recognized in Louisiana.¹⁸ The court was clear that Ducote represented a departure from the "settled jurisprudence" of the state courts, and that the rule as established in a South Central Bell Telephone Co.,¹⁹ and followed in the appellate courts of the state, was accorded sufficient weight by those courts as to become custom. If the rule had attained the stature of "custom,"it would qualify as a primary source of law under the Louisiana Civil Code.²⁰ Therefore, in Doerr, the court employed the doctrine of jurisprudence constante to justify its reversal of the prior holding in Ducote.

Notably, the composition of the Louisiana Supreme Court at the time of the Doerr decision was different from the composition at the time of Ducote. Justice Marcus joined in the majority in Ducote, but had retired at the time when the Doerr case was heard. Justice Lemmon, who did not sit on the panel in Ducote, was the deciding vote in Doerr that arguably caused the transposition of the majority and minority between the two cases.

B Louisiana Electorate of Gays and Lesbians v. State

Despite its pronouncement in Doerr, in March 2002, the Louisiana Supreme Court sent a message to the legal community in Louisiana that was rather difficult to understand in light of its own "settled jurisprudence."²¹ In the case of Louisiana Electorate of Gays and Lesbians v. State, the supreme court stated:

Despite the clarity of our holding to this effect, the district court chose to depart from Smith and reached a contrary result on the law. This action involves, at least, a failure by Page 683 the lower court to recognize its obligation to follow the law of this State as pronounced by this court.²²

This statement presents the legal practitioner with a plethora of puzzles. What is this "obligation" the court spoke of in this excerpt? According to the civil law tradition, specifically the theory of jurisprudence constante, judges are not bound by prior decisions, even those announced by higher courts. Likewise, does the court really intend to mean that the law of Louisiana can be "pronounced by this court?" If so, then this calls into question the meaning of Article III of the Louisiana Constitution and its statement that the legislative power of the state will be vested solely in the legislature.²³ However, this case does not represent the first instance...