JUNE MEDICAL SERVICES LLC v. LANDRY (2022)

Stay denied, writ denied. This Court declines to exercise its plenary supervisory jurisdiction at this preliminary stage of proceedings. See La. Const. art. V, section 5(A); Marionneaux v. Hines, 05-1191 (La. 5/12/05), 902 So. 2d 373.

This application is procedurally premature. Applicant should first seek relief in the trial court and court of appeal. This application does not reach the merits.

We have plenary power to review the trial court's temporary restraining order. These circumstances are at least as compelling as others where we have exercised that authority. See Perschall v. State of Louisiana, 96-0322 (La. 7/1/97), 697 So.2d 240; Marionneaux v. Hines, 05-1191 (La. 5/12/05), 902 So.2d 373; In re Matthews, 21-01078 (La. 1/28/22), 333 So.3d 422.

Louisiana Code of Civil Procedure article 3603 allows for a temporary restraining order without notice when it clearly appears from specific facts shown by a verified petition or supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. In addition, although a party seeking a temporary restraining order based on an alleged unconstitutional statute need not establish the unconstitutionality of the statute to obtain the order, they must make a prima facie showing that they will prevail on the merits of the case. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346, 348 (La. 1979); Kruger v. Garden District Assoc., 99-3344 (La. 3/24/00), 756 So.2d 309, 311. In other words, the plaintiff must show that the statutes are likely unconstitutional. At this stage, that did not, nor does it now, involve a factual determination. We review the statutes de novo, in the same manner as the trial court, to determine irreparable harm and likelihood of success. The determination is a purely legal analysis. It will not affect the parties’ right to a preliminary injunction hearing where evidence, if any, can be received.

I believe the circumstances of this case compel us to review the propriety of the temporary restraining order. The plaintiffs have asserted that they, as doctors, will suffer irreparable harm if the “triggering” statutes that prohibit abortions go into effect. The contrasting interest is that alleged life will be terminated if the prohibitory statutes do not go into effect. While whether these doctors will suffer irreparable harm by being prohibited from performing abortions is debatable, terminating alleged life during the period of the temporary restraining order is irreparable. We should consider these arguments by granting the applicant's writ and staying the effects of the temporary restraining order.

The plaintiffs must also show that the “triggering” statutes are likely unconstitutional. They argue the statutes are unconstitutionally vague. The trial court, by granting the temporary restraining order, presumably agreed. We should grant the applicant's writ to analyze whether the statutes, on their face, are unconstitutionally vague. I have not determined, nor is it necessary to determine at this stage, whether the statutes are unconstitutionally vague or whether the plaintiffs proved irreparable harm. But, I do believe we have a constitutional duty to consider whether the trial court correctly made these determinations. I would grant both the state's writ application and the request for a stay.

Louisiana Code of Civil Procedure article 3603 A(1) limits the circumstances upon which a temporary restraining order (TRO) may be issued and expressly provides that a TRO is only permitted when “[i]t clearly appears from specific facts shown by a verified petition․ that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition.” Based on the record before us, and the lack of any supporting reasons by the trial court, there has not been a showing that immediate irreparable injury would result before the opposition could be heard and, accordingly, the TRO was improvidently granted.

NOTICE OF RECUSAL

I am currently involved in litigation in Federal Court to ensure that the citizens of the Louisiana Supreme Court district I serve will have the opportunity to vote in a previously scheduled election this fall. One of the named defendants in this matter, the Attorney General, has opposed the position for which I advocate in the federal litigation. Consequently, I am recused to avoid any appearance of impropriety in this matter due to these unusual circumstances which include the presently short time frame that precludes the opportunity for a notice of potential grounds for recusal pursuant to the spirit of La. C.C.P. art. 152 and any response to such a notice.

Hughes, J., concurs and assigns reasons. Crain, J., would grant and assigns reasons. McCallum, J., would grant writ, grant stay, and assigns reasons. Weimer, C. J., recused.