Revisiting Contra Non Valentem in Light of Hurricanes Katrina and Rita

• Author: Benjamin West Janke
• Position: Recipient of the 2007-2008 Vinson & Elkins Best Casenote or Comment Award for Excellence in Legal Writing.
• Pages: 498-547

Page 498

Benjamin West Janke : I am grateful for the wisdom and guidance of the faculty of the LSU Law Center, especially Professors William E. Crawford, Ronald J. Scalise, Jr., and Saúl Litvinoff.

I Introduction

Panic struck South Louisiana like it never had before. Officials scrambled to secure the state and prepare it for the inevitable problems that would follow from the looming danger in the Gulf of Mexico. Lookouts spotted the threat sailing across the water into Louisiana-there were British troops sailing through Lake Borgne on their way to New Orleans.¹ Even before the troops set foot on the Louisiana mainland,² the state legislature had already suspended prescription for 120 days.³ Without the burden of prescription, citizens could focus on what would become the Battle of New Orleans.⁴

The situation was somewhat familiar almost two hundred years later with another danger looming in the Gulf of Mexico. Louisianans once again braced themselves for the worst, and while they did not know exactly what to expect from Hurricane Katrina,⁵they knew that it would wreak havoc on the state. At first, it looked like the city of New Orleans had "dodged a bullet." Expected hurricane destruction would have been a relief considering what actually occurred. What was feared unfortunately came to fruition in a day's time when levee breaches brought the city's problems to a whole new level. An estimated eighty percent of the city's evacuated residents watched as the storm submerged eighty percent Page 499 of New Orleans.⁶ Amidst the chaos, it was impossible for many people to meet their prescriptive deadlines.

One week later, Governor Kathleen Blanco responded by issuing an executive order for the retroactive suspension of all prescriptive and peremptive periods beginning on the date the hurricane struck and lasting through at least September 25th.⁷ The Governor followed this executive order with two subsequent orders further extending the prescriptive and peremptive periods.⁸ On September 24th, Hurricane Rita struck Southwest Louisiana and further strained the state's resources.⁹

Amidst concern that the Governor's executive orders were illegal for want of authority to modify prescriptive periods, the legislature (which has exclusive authority to modify prescription)¹⁰ratified and modified her orders.¹¹ To further complicate matters, there is concern that this legislative action was unconstitutional because it deprived defendants of their vested rights by retroactively modifying prescriptive and peremptive periods.¹²

While it was ostensibly both rational and practical to suspend prescriptive and peremptive periods for all legal proceedings throughout the state in the wake of Hurricanes Katrina and Rita, this approach was problematic for two reasons: (1) there was a narrow window (a day) within which the legislature had to act before the suspension of prescription was either impermissibly retroactive or neglected claims that prescribed during or after the hurricanes; and (2) the hurricanes invariably affected litigants in different ways. Page 500

A better response would have been to resort to a doctrine that Louisiana and other civil law jurisdictions have recognized for hundreds of years for the suspension of prescription: contra non valentem. Part II of this Comment traces the evolution of contra non valentem from its roots in Roman law to Louisiana's treatment of the doctrine and analyzes its application in situations where a factual impediment prevents attorneys from complying with applicable prescriptive or peremptive periods. Part III of this Comment explores how other civil law jurisdictions have treated the doctrine of contra non valentem in similar situations and also evaluates how common law jurisdictions handle similar matters without the doctrine. Part IV of this Comment evaluates the post- hurricane legislation that retroactively revived prescribed claims in terms of overbreadth and impermissible retroactivity. Finally, in light of the challenges presented by Hurricanes Katrina and Rita, Part V of this Comment recommends the use of contra non valentem in future situations where a factual impediment prevents attorneys from complying with prescriptive and peremptive periods.

II Background

A Louisiana's Treatment of Contra Non Valentem

1. The Inception of Contra Non Valentem in Louisiana

In Louisiana, "[a] person may lose his right to assert a cause of action because of passage of time by either peremption or prescription."¹³ Prescription is a "limitation of time fixed by law for the exercise of a right, and the effect of prescription when pleaded by the obligor is that the obligee's untimely action is barred."¹⁴Prescription is subject to suspension, interruption, or the "doctrine of contra non valentem agere nulla currit praescriptio."¹⁵ Peremption, however, is "a period of time fixed by law for the existence of a Page 501 right"¹⁶ that "may not be renounced, interrupted, or suspended."¹⁷Contra non valentem may not suspend peremption.

The first reported decision to apply contra non valentem in Louisiana was Quierry's Ex'r v. Faussier's Ex'rs,¹⁸ where the Louisiana Supreme Court recognized the validity of the state legislature's prospective suspension of certain legal actions for 120 days¹⁹ in response to the Battle of New Orleans.²⁰ After years of judicial experimentation, Louisiana courts recognized contra non valentem in three general instances:

1st. Where there was some cause which prevented the courts or their officers from acting or taking cognizance of the plaintiff's action; a class of cases recognized by the Roman law as proper for the allowance of the utile tempus. 2d. The second class of cases are those where there was some condition or matter coupled with the contract or connected with the proceeding which prevented the creditor from suing or acting. 3d. The third class of cases is where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.²¹

Additionally, "[m]odern jurisprudence also recognizes a fourth type of situation where contra non valentem applies so that prescription does not run: Where the cause of action is not known or Page 502 reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant."²²

The instance with which we are concerned is the first: where some condition prevented the courts from "acting or taking cognizance" of the plaintiff's action.²³ Modern recapitulations of the four categories of contra non valentem have inaccurately termed this first category as one "where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action,"²⁴ even though the jurisprudence clearly treats this category as one that embodies both factual²⁵ and legal²⁶ barriers. This bifurcation is true both in Louisiana law and other civilian jurisprudence.²⁷ The earliest reported decision to mistakenly use the word "legal" to describe the first category of contra non valentem cases without regard to factual impediments was Suire v. Combined Insurance Co. of America.²⁸ Over a hundred reported Louisiana decisions have subsequently copied the same Page 503language,²⁹ including the seminal case of Corsey v. State Department of Corrections.³⁰ This Comment is only concerned with those situations where there is a factual impediment to meeting a prescriptive period.

Despite its deep roots in Louisiana jurisprudence, Louisiana courts routinely but inconsistently rejected contra non valentem in post-Civil War cases in a way that only political strife can explain. In Smith v. Stewart, the Louisiana Supreme Court declared the doctrine to be against Civil Code provisions.³¹ This decision effectively overruled previous jurisprudence on the matter;³²however, the United States Supreme Court interpreted contra non valentem to be the law in Louisiana in Levy v. Stewart,³³ thereby effectively overruling cases like Smith v. Stewart.³⁴ Just days after the Levy decision, the U.S. Supreme Court ruled in Stewart v. Kahn that a congressional act issued in 1864³⁵ suspending prescription (or its common law equivalent) throughout the country was constitutional.³⁶ The Court conceded that a "severe and literal construction of the language [might mean that] . . . [the] clause was intended to be made wholly prospective" but chose instead to give it retroactive effect according to what it believed was the intention of Page 504 the statute.³⁷ The Louisiana Supreme Court blatantly ignored Kahn in deciding the case of Harrison v. Succession of Adger by interpreting Congress' act of 1864 as strictly prospective in effect.³⁸The Harrison court balked at the Kahn opinion as "simply the recognition of the maxim, contra non valentem," which the Louisiana Supreme Court previously held as having no place in Louisiana law.³⁹ Despite their continued resentment of contra non valentem, the same five justices in...