This afternoon, following the issuance of a temporary restraining order by Judge Janice Clark of the 19th Judicial District Court barring the state’s Board of Regents from moving forward on a study on merging Southern University at New Orleans with the University of New Orleans, Gov. Bobby Jindal filed a motion through Attorney General Buddy Caldwell’s office to dismiss the TRO.
It’s fairly entertaining stuff.
The suit in question was filed by Baton Rouge lawyer, former U.S. Congressman and 1995 gubernatorial runner-up Cleo Fields, on behalf of a group of seven SUNO students who alleged that because the governor replaced four African-American Regents with white guys, the Board is unconstitutionally constituted – and therefore no actions it takes are valid under state law. Clark issued the TRO Monday afternoon.
According to Jindal’s motion, however, Clark’s injunction wasn’t exactly an exemplar of legality.
The motion suggests no less than five legal deformities found in Clark’s TRO…
1. On February 14, 2011, this court issued a temporary restraining order without notice or hearing and without bond. La. C.C.P. art. 3604 requires the court to “state why the order was granted without notice.” The temporary restraining order issued on February 14, 2011 in this matter did not identify any reasons why it was granted without notice and hearing, contrary to the requirements of La. C.C.P. art. 3604.2. Second, La. C.c.P. art. 3603 requires the applicant’s attorney to certify “to the C0urt in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice shall not be required.” The petition for temporary restraining order in the instant matter contains no such certification. Furthermore, undersigned counsel avers that neither Governor Jindal nor the Board of Regents wascontacted by plaintiffs’ counsel.3. Third, the temporary restraining order issued in this matter simply dispensed with the requirement of a bond. Under La. C.C.P. art. 3610, a “temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law.” No law exists that exempts plaintiffs from the requirement of posting security in the instant matter.4. In addition,’ plaintiffs’ allegations show no irreparable harm to the plaintiffs resulting from the actions of the Board of Regents that the plaintiffs seek to enjoin, i.e., the simple act of conducting a study. The Board of Regents is tasked with conducting a study and making recommendations to the Governor and the Legislature. The Board of Regents has no authority to effect the merger or consolidation that is the subject matter of the study. The temporary restraining order restraining the Board of Regents from “conducting any study” is unduly broad in violation of La. C.C.P. art. 3604.5. Finally, plaintiffs have alleged no individualized deprivation of a constitutional right. Merely alleging that a board is not constitutionally formed is insufficient to support issuance of a temporary restraining order where the applicants suffer no individual harm and no deprivation of an individual constitutional right.
Clark, a 1976 graduate of Southern Law School, is known as a relatively activist judge and one friendly to certain points of view. But the motion seeks relief from Judge Tim Kelley, whose reputation is more of a mainstream jurist.
The guess is that Jindal will get Clark’s TRO thrown out. The deadline for the study on the SUNO-UNO merger issue is March 1, though, so it’s anybody’s guess what Fields’ suit will do to the Regents’ schedule – and should the Regents vote to recommend the merger go forward, Fields and his plaintiffs will certainly be in court again with the same allegations of unconstitutionality.