103 So. 3d 1118
La. Ct. App.2012Background
- DPSC seeks declaratory relief that its lethal injection protocols are not rules under LAPA and that old rules are not subject to challenge.
- Nathaniel Code petitioned for declaration that protocols are rules; DPSC reconventionally sought to invalidate them as not rules.
- Jacobs filed post-conviction relief against Warden Burl Cain; DPSC’s reconventional demand later included all death-row inmates.
- Trial court sustained Jacobs’ lis pendens and partially sustained prematurity as to the not-rules issue; final judgment issued March 15, 2011.
- Consent Judgment (April 28, 2011) certified partial final judgment; DPSC sought appellate review.
- This Court affirms in part, reverses in part, renders in part, and remands consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lis pendens requires identity of parties. | Jacobs—identity of parties; DPSC—same parties in same capacities. | Jacobs—lis pendens applicable due to overlapping issues; DPSC challenged. | Reversed; no identity of parties in same capacities. |
| Whether the action is prematurity as to the lethal-injection protocol not being rules under LAPA. | DPSC seeks broad declaratory relief that protocols are not rules now and in future. | Contingencies may change facts; immediate controversy exists; not premature. | Prematurity reversed; protocols not subject to LAPA are not premature. |
| Whether DPSC protocols for death-sentence execution fall outside LAPA rulemaking. | Protocols are not rules under LAPA. | Protocols may be subject to LAPA; challenge timely. | Protocols are not subject to LAPA; not rules. |
| Whether the appellate designation of final judgment was appropriate. | Designation proper under Article 1915(B) to permit appeal. | Challenge to finality and review limits. | Designation appropriate; appellate jurisdiction proper. |
Key Cases Cited
- Templet v. State ex rel. Dept. of Public Safety and Corrections, 951 So.2d 182 (La.App. 1 Cir. 2006) (standard for determining final-judgment certification under Article 1915)
- R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La.3/2/2005) (factors for when a partial judgment can be appealed)
- Wooley v. State Farm Fire and Cas. Ins. Co., 928 So.2d 618 (La.App. 1 Cir. 2006) (definition of justiciable controversy for declaratory relief)
- Jensen Const. Co. v. Department of Transp. and Development, 542 So.2d 168 (La.App. 1 Cir.) (identity of parties for lis pendens when not identical parties may share quality)
- Leon v. Moore, 731 So.2d 502 (La.App. 1 Cir. 1999) (res judicata scope under amended La. R.S. 13:4231)
- American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993) (contingent declaratory judgments should not be issued if facts may change)