Highlights of AG Amicus Brief Supporting Firehouse BBQ’s Not Requiring Masking

 Louisiana Attorney General Jeff Landry has filed an amicus brief with 21st Judicial District Court Judge Brian Abels in support of Danielle Bunch of Firehouse BBQ.  Ms. Bunch is being harassed by Gov. John Bel Edwards who has ordered her restaurant closed for violating his mandatory mask order. Ms. Bunch said her employees have health issues and cannot wear masks. In turn, she said that if they did not mask, it was pointless to require her customers to wear a mask.

Here are highlights of the amicus brief filed at Attorney General Jeff Landry:

I. The Louisiana Department of Health has no authority to close Firehouse BBQ based on the Governor’s legally-flawed mask mandate.

The enforcement action against Firehouse, at bottom, rests on an unsound and faulty legal foundation because it relies on the legally-flawed Mask Mandate issued by Executive Proclamation 89 JBE 2020 (“the Proclamation”). Jacobsen v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), does not save the Proclamation’s Mask Mandate, because Jacobsen does not speak to or override the State’s constitution or the statutory law from which the Governor’s powers emanate, nor does it displace the federal constitution. While Jacobsen permits the government some flexibility in the exercise of its police powers free from federal judicial interference, it still presumes that a valid authorization to act in the first place. In the absence of such authorization for the government action (or where, as here, the Legislature has expressly limited the Governor’s emergency powers), the government’s conduct is arbitrary and capricious, denies Firehouse fair notice and procedural due process, and constitutes an ultra vires act that should be enjoined. Even if this Court finds a legal basis for the Governor and Louisiana Department of Health’s regulatory actions regarding the Mask Mandate generally, the Governor still must enforce his rules fairly and evenhandedly. And, finally, if his and LDH’s actions against Firehouse retaliate for its speech or are designed to muzzle it from criticizing the Governor’s ultra vires order, such actions clearly violate Firehouse’s First Amendment rights.

A. The Flawed Mask Mandate Is Inadequate as a Matter of Law to Support Closure of Firehouse.

The Governor and LDH should be enjoined from taking or authorizing any further enforcement actions based on the legally-flawed Proclamation.

1. The Governor exceeded his limited authority under the emergency powers acts.

This Court need not look past the emergency statutes’ text to conclude the Governor and LDH acted without legal authority because the emergency powers acts do not confer authority to impose a Mask Mandate, much less to co-opt businesses as Mask Enforcement Police. Nor do they authorize the Governor to deploy the Fire Marshall and LDH employees to threaten businesses and to close them when they refuse to act as the Governor’s Mask Enforcers. Neither the Governor, nor the Department can cite to any authority that permits the Governor to threaten the license of private businesses who refuse to be his Mask Enforcers.

Legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the legislature’s intent. La. R.S. 1:4; La. Civ.Code art. 2; Conerly v. State, 97–0871, p. 3 (La.7/8/98), 714 So.2d 709, 710… The fundamental question in all cases of statutory interpretation is legislative intent and ascertaining the reason that prompted the legislature to enact the law. In re Succession of Boyter, 99–0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128…

Here, there is no ambiguity in the emergency powers acts and so the search for legislative intent need not go far. The Legislature granted the Governor enumerated powers under the Louisiana Homeland Security and Emergency Powers Act (“LHSEPA”). La. R.S. 29:729-739, and the Louisiana Health Emergency Powers Act (“LHEPA”). La. R.S. 29:760-772. These Acts both delegate certain powers to the Governor to protect public safety and public health. See La. R.S. 29:724 (Powers of the Governor under LHSEPA); La. R.S. 29:766 (Declaration of a state of public health emergency under LHEPA); La. R.S. 29:769 (special powers during public health emergency). The statutes authorize the Governor to declare an emergency by proclamation or executive order. Publication of the order is sufficient to give notice, and the order or proclamation then has the “force and effect of law.” La. R.S. 29:724(A). 

In the event someone violates an emergency proclamation or order declared by the governor pursuant to LHSEPA, “any person or representative of any firm, partnership, or corporation violating any order, rule or regulation promulgated pursuant to this Chapter, shall be fined not more than five hundred dollars or confined in the parish jail for not more than six months, or both. La. R.S. 29:724(E). However, should this provision be misconstrued, the Legislature clearly limited the Governor’s authority in the very next sentence: “No executive order, proclamation, or regulation shall create or define a crime or fix penalties.”

Requiring individuals across the State to wear face coverings does not fall within any of the Governor’s enumerated powers. Nor does anything in these collected statutes reasonably include such a requirement. Perhaps recognizing the difficulty in enforcing such an unauthorized and broad individual mandate, the Governor’s proclamation did not stop with the individual mandate–it threatened “citations” (undefined) of private businesses who refuse to enforce the Mask Mandate against their employees and patrons or customers. But nothing in either Act permits such an action by executive order or proclamation. To the contrary, the LHSEPA’s express limit on creating law or fixing a penalty clearly prohibit (1) creating the mandate, which is a new requirement imposed on people; (2) imposing enforcement obligations on businesses, which did not previously exist; and (2) fixing a penalty by threatening suspension or revocation of business licenses. 

In addition to the express limit on using an order, proclamation, or regulation to create or define a crime or fix penalties, the LHSEPA also expressly states that “nothing in this Chapter shall be interpreted to diminish the rights guaranteed to all persons under the Declaration of Rights of the Louisiana Constitution, or the Bill or Rights of the United States Constitution. This Chapter shall not violate Article II (Distribution of Powers), Article III (Legislative Branch), or Article V (Judicial Branch) or the Louisiana Constitution….” Apart from the express statutory limitation and invocation of the State constitution, the First Circuit has held that the separation of powers limits the power of the Governor to make law with an executive order. See Louisiana Dep’t of Justice v. Edwards, 2017-0173 (La. App. 1 Cir. 11/1/17), 233 So. 3d (nothing prohibits the Governor from establishing policy through executive orders; however, the limited power of the Governor to issue executive orders does not inherently constitute authority to exercise the legislative lawmaking function, citing La. Const. art. 4, § 5(A) and La. R.S. 49:215(A)); see also State v. Broom, 439 So. 2d 357 (La. 1983) (statute governing penalties for possession of explosives contrary to regulation and statute delegating authority to director of public safety to define felony offenses punishable under such statute were unconstitutional because they violated separation of powers). 

Thus, limits on the Governor’s powers are spelled out both in the structure of State government and in the Acts : first, the Governor has no authority to create law with any executive order; second, the Governor has no authority to impose any criminal law or penalty by executive proclamation or order; and third, his exercise of limited enumerated powers cannot violate rights protected by the state or federal constitutions (even if a broad view of constitutional power permits him wide discretion in the federal system). To the extent any of his actions have the force and effect of law, then, it can only be the enumerated actions. Any other action, to the extent it is necessary, reasonable, and within the scope of other authority to protect the public health, safety, and welfare of the people, must comply with the LAPA. Alternatively, if no authority exists, the Legislature may call itself into session or the Governor may call it into session to address the issue. See La. Const. art. 3, §2 (B)(C). As a corollary to the limits on the Governor’s power, the Louisiana Supreme Court also has clearly held that the Governor cannot delegate power he does not have. See, Louisiana Hosp. Ass’n v. State, 2013-0579 (La. App. 1 Cir. 12/30/14), 168 So. 3d 676, 686, writ denied sub nom. Louisiana Hosp. Ass’n v. State ex rel. Dep’t of Ins., 2015-0215 (La. 5/1/15), 169 So. 3d 372. There can be no doubt that the Mask Mandate is intended to be a substantive requirement with the force and effect of law, or Firehouse would not find itself embroiled in this fight for survival as a business with all its constitutional rights intact. But reading the LHSEPA as a whole, it is clear that the legislature did not intend to convey legislative authority upon the Governor during a state of emergency. 

2. The Mask Mandate allows businesses to rely on representations of patrons and employees, and therefore it does not provide a basis upon which to shutter a business that is “non-compliant” with enforcing the mandate The Attorney General outlined in detail in Attorney General Opinion 20-0068 (Exhibit F to Firehouse’s Answer) the many ways the Governor’s Mask Mandate is vague and overbroad. Here, the subjective nature of the Mandate is particularly relevant. The order contains a long list of exceptions to the Mandate, all of which are subjectively determined by the wearer. For a notable example, an individual wearer who has any health condition that the wearer determines makes wearing a face covering infeasible, is categorically exempt from the requirement. Also, a wearer who is consuming food or drink is exempt. As Firehouse is a restaurant, its patrons are there for that purpose. And, as LDH has now conceded, as it must due to the plain language of the order, Firehouse is entitled under the plain terms of the Proclamation to rely upon the representation of it patrons and employees and cannot be cited for relying on such representations. Moreover, the Proclamation creates no obligation to ask, nor does it require an individual to provide a reason if asked (requirements that would have the same defects discussed here if they did exist.) And while that concession is important for Firehouse’s case, it also serves to show how the Governor and LDH’s exercise of power in such an arbitrary and capricious manner, where it concedes the target of its action has not violated the order but shuttered it anyway, may continue to threaten any business.

Given this safe harbor provided to businesses, it is difficult to find any grounds for the emergency order LDH issued to Firehouse. The Proclamation does not require business owners to even ask patrons or employees what their reason is for not wearing a mask. Indeed, such a question would seem to be unnecessary as the business has no obligation to ask but to the extent a reason is offered it can rely on whatever reason provided. Likewise, it has no obligation whatsoever to refuse to allow an employee to work or to refuse service to a patron…

What is perhaps even more revealing is the proposed “Agreement to Comply with Emergency Order” submitted to Firehouse as a condition to being allowed to re-open. That document contains clear content-based restrictions on Firehouse’s speech, which it seeks to impose upon Firehouse by “consent” as a condition remaining open. The restrictions include a requirement that Firehouse “remove signs at the facility, and posts on social media, stating or indicating that compliance with the mask/face covering order requirements of the Governor’s Covid-19 related Proclamations do not have to be adhered to at the facility by employees or customers or patrons.” Another “consent” restriction proposed is that Firehouse “not replace or remove any such removed signs without substantially similar substitutes” and it proposes that Firehouse must agree to enforce the Proclamations at the facility “by ejecting from the Facility any employees or customers who fail or refuse to wear masks/face coverings as required by such proclamations.”

So, to summarize:

• The Governor issued a Proclamation with an unlawful Mask Mandate that exceeds his authority.

• The Mask Mandate, as written, expressly permits individuals to exempt themselves.

• The Mask Mandate, as written, expressly permits businesses to rely on the subjective decision of any individual not to wear a mask/face covering.

• The Mask Mandate, as written, imposes no express duty upon any business owner to inquire of any employee or customer/patron regarding their decision.

• Neither LDH nor the Office of Public Health promulgated any rules or regulations relative to mask mandates (and the Governor has no authority to promulgate rules).

• The Emergency Order closing Firehouse cites only the Governor’s Proclamation as the basis for Firehouse’s substantive duty and as a basis for the State Health Officer’s exercise of authority pursuant to the Sanitary Code.

• LDH’s proposed “Agreement to Comply with Emergency Order” threatens long-term closure and potential bankruptcy of Firehouse if it refuses to stop criticizing the Governor’s orders and saying they are unlawful;

• LDH’s proposed “Agreement to Comply” also imposes a vague and overbroad restriction on replacing any removed signs with “substantially similar substitutes,” a content-based judgment presumably left entirely to the Department’s (or the Governor’s) discretion as to whether the speech is offensive enough to be “substantially similar,” and It forces Firehouse to agree to discriminate against and eject its employees and patrons if they fail to wear a face covering, even though the Proclamation expressly permits those same individuals not to wear one.

The State Health Officer, as discussed above, did not have authority to interject the Proclamation into the Sanitary Code and impose it by reference in an Emergency Health Order. To the extent any such requirements are authorized as necessary to manage a threat to the public health, the SHO was required, through the Office of Public Health, to strictly comply with the APA and promulgate rules. Yet for nearly six full months, he has failed to promulgate a single rule, by emergency or ordinary rulemaking.

The Governor’s Proclamation, as discussed above, is insufficient to support Firehouse’s closure and LDH has not pointed to any other legal authority for the closure or other restriction on it carrying on its operations. The proposed consent order, which proposes to muzzle Firehouse’s speech, is telling. It imposes government-supervised restrictions on speech and particularly of criticism of the Governor’s orders and it extorts compliance by threatening to bankrupt the business with a long-term, open-ended shut down for the duration of the emergency. That is not how government is permitted to operate under our State or federal constitutions.

II. The Louisiana Department of Health has not coherently or consistently enforced any restrictions relative to public health “mandates” since the pandemic began.

Prior to 89 JBE 2020, neither the Governor nor LDH took any actions to enforce any Proclamations or SHO orders, other than authorizing a handful of investigations related to elective procedures and then changing the SHO order to permit them. Consequently, compliance has been inconsistent from the beginning. Indeed, even the proclamations were vague and internally inconsistent, as they “required” people to stay home, while permitting thousands to move freely about. The Governor issued proclamations demanding many business close, but left thousands that fell into vaguely referenced categories of “essential businesses” open without any apparent restrictions. (For example, Albertsons, Wal-Mart, Lowes, and many others, had no form of social distancing measures in place for months.) Although the emergency powers Acts both permit restricting sale of alcoholic beverages, the Governor has elected not to restrict the sale or consumption of alcohol anywhere. Instead, he closed some bars statewide, while leaving open bars in restaurants, casinos (with or without bars), and permitted video poker to continue anywhere it is ordinarily allowed. The Governor criticized some crowds, like in church gatherings, but encouraged others, like in protests. See, e.g. Spell v. Edwards, 962 F.3d 175, 181 (5th Cir. 2020).

Until Firehouse publicly criticized the Governor’s ultra vires acts, it operated without government interference. But apparently the one action that does trigger enforcement is publicly stating the Proclamation is unenforceable and publicly refusing to comply with it. That triggered a closure order purportedly based on non-existent regulations and a threat to bankrupt the business if it will not accede to LDH oversight of content-based restrictions on its speech and agree to become the Governor’s Mask Enforcer. There simply is no basis in our law or constitution for such conduct. 

The Governor’s conduct and LDH’s complicity with it support an injunction against the Mask Mandate that not only would protect Firehouse, but also protect the thousands of other businesses that are currently threatened with closures, or being extorted with ultra vires “agree-

ments” simply to remain open.