June Medical Services, LLC d/b/a Hope Medical Group for Women v. Louisiana Department of Health and Rebekah Gee, M.D., in her official capacity as Secretary of the Louisiana Department of Health ( 2020 )


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  •                                      STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    2019 CA 0191
    JUNE MEDICAL SERVICES, LLC D/ B/ A HOPE MEDICAL GROUP FOR WOMEN
    VERSUS
    LOUISIANA DEPARTMENT OF HEALTH & REBEKAH GEE, M. D., IN HER
    OFFICIAL CAPACITY AS SECRETARY OF THE LOUISIANA DEPARTMENT OF
    HEALTH
    Judgment Rendered:
    MAR 0 4 2020
    On Appeal from the Nineteenth Judicial District Court
    In and for the Parish of East Baton Rouge
    State of Louisiana
    Docket No. C657201
    Honorable Janice Clark, Judge Presiding
    Ellie T. Schilling                            Counsel for Plaintiff/ Appellee
    Mandie Landry                                 June Medical Services, LLC d/ b/ a
    Megan E. Snider                               Hope Medical Group for Women
    New Orleans, Louisiana
    Neal R. Elliott, Jr.                          Counsel for Defendants/ Appellants
    Kimberly L. Humbles                           Louisiana Department of Health and
    Brandon J. Babineaux                          Rebekah Gee, M. D., in her Official
    Christina Legros Robertson                    Capacity as Secretary of the
    Lavon Raymond Johnson                         Louisiana Department of Health
    Baton Rouge, Louisiana
    BEFORE:       McCLENDON, WELCH, AND HOLDRIDGE, JJ.
    McCLENDON, J.
    In this suit for declaratory relief, the defendants challenge a district court
    judgment that granted the plaintiff's motion for summary judgment, denied the
    defendant's cross- motion for summary judgment, and declared Louisiana' s Abortion
    Facilities Licensing Standards invalid and unenforceable.            For the reasons that follow,
    we reverse the summary judgment and remand for further proceedings.
    FACTUAL AND PROCEDURAL HISTORY
    Louisiana' s     Outpatient   Abortion   Facility    Licensing   Law (   OAFLL),    LSA- R. S.
    40: 2175. 1, et seq.,
    was enacted in 2001 with the purpose of authorizing the Louisiana
    Department       of    Health ( the   Department)    to     promulgate    and    publish   rules    and
    regulations to provide for the health, safety, and welfare of women in outpatient
    abortion facilities and for the safe operation of the facilities.         LSA- R. S. 40: 2175. 2.    In
    LSA- R. S.   40: 2175. 5,   the legislature vested the Department with the authority to
    promulgate and publish rules, regulations, and licensing standards to fulfill this purpose,
    and pursuant to this delegation of authority, the Department promulgated rules,
    regulations, and licensing standards in 2003.
    On December 20, 2014, the Department published a Notice of Intent to repeal
    and replace the existing regulations. The Notice of Intent provided that since 2010, the
    OAFLL had undergone several legislative revisions requiring the Department to update
    the regulations, and, therefore, it proposed to repeal and replace the regulations in
    order to incorporate the changes imposed by legislation and to further revise and clarify
    the regulations.      After the notice was published, the Department received thousands of
    comments to the          new regulations ( the   Regulations)     and    issued a '   global agency
    response" on its rulemaking website. The Regulations were published in the Louisiana
    Register and became effective on April 20, 2015.
    June Medical Services, LLC d/ b/ a Hope Medical Group for Women ( June Medical)
    is a reproductive health clinic in Shreveport, Louisiana, and has been licensed as an
    outpatient abortion facility since 2003. On January 19, 2017, June Medical submitted to
    the Department a Petition for Agency Review and Repeal of the Regulations, requesting
    2
    that the Department "
    review the regulations and engage in rulemaking to repeal
    them."'         June Medical also requested that it be notified if the Department " does not
    intend to repeal the regulations, and any exhaustion requirement that [ June Medical]
    may have has been satisfied."               June Medical received no response to the petition for
    agency review from the Department before April 19, 2017, when it filed a Petition for
    Declaratory Judgment in the Nineteenth Judicial District Court pursuant to LSA- R. S.
    49: 963. 2 In its petition, June Medical alleged that the Department did not substantially
    comply with the Louisiana Administrative Procedure Act, LSA- R. S. 49: 950, et seq.
    LAPA),
    and that the Department exceeded its statutory authority when the Department
    promulgated the Regulations. 3               The Department answered the petition on July 11,
    2017, maintaining that it followed the procedures of the LAPA and did not exceed its
    statutory authority in enacting the Regulations. The Department further stated that it
    responded to June Medical' s Petition for Agency Review and Repeal on May 26, 2017.
    On September 11, 2018, June Medical filed a Motion for Summary Judgment.                             In
    its motion, June Medical requested summary judgment declaring that the Regulations
    were invalid and unenforceable because the Department failed to substantially comply
    with the LAPA when it promulgated the Regulations.                        The Department opposed the
    motion and filed its own cross- motion for summary judgment.                            Both motions were
    1 Louisiana Revised Statutes 49: 953 provides the procedure for the adoption of rules. Particularly, LSA-
    R. S. 49: 953C provided, at the relevant time herein:
    An interested person may petition an agency requesting the adoption, amendment, or
    repeal of a rule. Each agency shall prescribe by rule the form for petitions and the
    procedure for their submission, considerations, and disposition. Within ninety days after
    submission of a petition, the agency shall either deny the petition in writing, stating
    reasons for the denial, or shall initiate rule making proceedings in accordance with this
    Chapter.
    z The LAPA provides that the validity or applicability of an agency rule may be determined in an action
    for declaratory judgment in the district court of the parish in which the agency is located. LSA- R. S.
    49: 963A( 1).    In such an action, the district court shall declare the rule invalid or inapplicable if it finds
    that the rule: ( 1) violates constitutional provisions, ( 2)  exceeds the statutory authority of the agency, or
    3) was adopted without substantial compliance with required rulemaking procedures. LSA- R. S. 49: 963C.
    If a plaintiff's challenge to the validity of a particular rule is based on one of these specific grounds, then
    an action for declaratory judgment under LSA- R. S. 49: 963 is the appropriate and only procedural vehicle
    by which to challenge the rule. Mid -City Automotive, L. L. C. v. Department of Public Safety and
    Corrections, 18- 0056 ( La. App. 1 Cir. 11/ 7/ 18), 
    267 So. 3d 165
    , 172- 73; Liberty Mut. Ins. Co. v.
    Louisiana Ins. Rating Com' n, 96- 0793 ( La. App. 1 Cir. 2/ 14/ 97), 
    696 So. 2d 1021
    , 1027, writs denied,
    97- 2069, 97- 2062 ( La. 12/ 19/ 97), 
    706 So. 2d 451
    , 452; Louisiana Chemical Ass' n v. Department of
    Environmental Quality, 
    577 So. 2d 230
    , 233 ( La. App. 1 Cir. 1991).
    3 There is no dispute that the Department is a state agency subject to the rulemaking requirements of
    the LAPA.
    3
    heard on December 6, 2018, at which time the district court granted June Medical' s
    motion for summary judgment and denied the Department's cross- motion for summary
    judgment, stating that the Department failed to substantially comply with the LAPA
    when the Department promulgated the Regulations.                            The district court signed a
    judgment on January 3, 2019, in conformity with its ruling, declaring the Regulations
    invalid and unenforceable.4
    The Department appealed the grant of the motion for summary judgment,
    asserting that the district court erred 1)                 in finding that the Department did not
    substantially comply with the rulemaking procedure in the LAPA and declaring the
    Regulations invalid and unenforceable, and 2) in not limiting itself to the review of the
    administrative record and conducting a review compliant with the LAPA. 5
    DISCUSSION
    Appellate courts review summary judgments de novo using the same criteria
    governing the trial court's consideration of whether summary judgment is appropriate.
    Red Star Consultants, LLC v. Ferrara Fire Apparatus, Inc., 17- 0847 ( La. App. 1
    Cir. 2/ 8/ 18), 
    242 So. 3d 608
    , 611.          That is, a motion for summary judgment shall be
    granted       if,   after   an   opportunity for discovery,           the   motion,   memorandum,         and
    supporting documents show there is no genuine issue of material fact and the mover is
    entitled to judgment as a matter of law.            LSA- C. C. P. art. 966A( 3).
    If the mover will bear the burden of proof at trial on the issue before the court in
    the motion for summary judgment, the burden of showing there is no genuine issue of
    4 On December 27, 2018, the district court signed an order regarding June Medical' s ex parte Motion and
    Incorporated Memorandum for Litigation Expenses that ordered the Department to pay to June Medical
    7, 500. 00 for reasonable litigation expenses. The Department filed a separate appeal regarding the
    litigation expenses, which we also decide this date. See June Medical Services, LLC d/ b/ a Hope
    Medical Group for Women v. Louisiana Department of Health, et all, 2019 CA 0192.
    5 The Department also filed Peremptory Exceptions of No Cause of Action and Peremption in this court.
    Therein, the Department asserted that June Medical failed to state a cause of action in its petition for
    declaratory judgment and that June Medical' s right of action was extinguished based on the expiration of
    the applicable peremptive period. An appellate court may consider a peremptory exception filed for the
    first time in that court, if pleaded prior to a submission of the case for decision, and if proof of the ground
    of the exception appears of record.        LSA- C. C. P. art. 2163.   Consideration of such an exception is
    discretionary with the appellate court. Southern States Masonry, Inc. v. J. A. Jones Const. Co., 
    507 So. 2d 198
    , 207 ( La. 1987).     Because we are reversing June Medical' s summary judgment, as discussed
    hereinafter, and remanding the matter to the district court, we decline to address the peremptory
    exceptions.
    M
    material fact remains with the mover.        After the mover makes a prima facie showing
    that the motion should be granted,          the burden shifts to the non- moving party to
    present     evidence   demonstrating    a   material    factual   issue   remains.   Red   Star
    Consultants, LLC, 
    242 So. 3d at 611
    .         Factual inferences reasonably drawn from the
    evidence must be construed in favor of the party opposing a motion for summary
    judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders,
    00- 2507 ( La. 12/ 8/ 00), 
    775 So. 2d 1049
    , 1050.
    A fact is material if it potentially insures or precludes recovery, affects a litigant's
    ultimate success, or determines the outcome of the legal dispute.             Hines v. Garrett,
    04- 0806 ( La. 6/ 25/ 04), 
    876 So. 2d 764
    , 765 ( per curiam). A genuine issue is one as to
    which reasonable persons could disagree.        If reasonable persons could reach only one
    conclusion,
    there is no need for trial on that issue and summary judgment is
    appropriate.     Hines, 876 So. 2d at 765- 66.         Because the applicable substantive law
    determines materiality, whether a particular fact in dispute is material must be viewed
    in light of the substantive law applicable to the case.       Action Oilfield Services, Inc.
    v. Energy Management Company, 18- 1146 ( La. App. 1 Cir. 4/ 17/ 19), 
    276 So. 3d 538
    ,
    542.
    Louisiana Revised Statutes 49: 953, which sets the procedure for the adoption of
    rules, requires an agency to publish notice of its intent to adopt, amend, or repeal any
    rule in the Louisiana Register.    Women' s and Children' s Hosp. v. State, Dept. of
    Health and Hospitals, 08- 946 ( La. 1/ 21/ 09), 
    2 So. 3d 397
    , 401; Liberty Mut. Ins.
    Co. v. Louisiana Ins. Rating Com' n, 96- 0793 ( La. App. 1 Cir. 2/ 14/ 97), 
    696 So. 2d 1021
    , 1025, writs denied, 97- 2069, 97- 2062 ( La. 12/ 19/ 97), 
    706 So. 2d 451
    , 452.       The
    agency must provide interested persons with copies of the intended rule, and it must
    offer them a reasonable opportunity to respond. LSA- R. S. 49: 953A( 2)( a) and ( 2)( b)( i).
    Particularly, LSA- R. S. 49: 953A( 2) provides, in relevant part:
    A.   Prior to the adoption, amendment, or repeal of any rule, the agency
    shall:
    5
    2)( a) Afford all interested persons reasonable opportunity to submit data,
    views, comments, or arguments, orally or in writing. ...
    b)( i) ...    The agency shall consider fully all written and oral comments and
    submissions respecting the proposed rule.
    ii)The agency shall issue a response to comments and submissions
    describing the principal reasons for and against adoption of any
    amendments or changes suggested in the written or oral comments and
    submissions.
    The LAPA also provides that no rule is valid unless it was adopted in substantial
    compliance with the             provisions of the LAPA.             LSA- R. S.   49: 954A;    Women' s and
    Children' s Hosp., 
    2 So. 3d at 401
    .               Further, no rule shall be effective or enforceable
    unless: (   1)    it was properly filed with the State Register, ( 2) a report on the rule was
    submitted to the legislature in accordance with LSA- R. S. 49: 968, and ( 3) the approved
    economic and fiscal impact statements required by LSA- R. S. 49: 953A were filed with
    the Department of the State Register and published in the Louisiana Register. 
    Id.
    In its appeal, the Department argues that it presented sufficient evidence to
    show that the Department substantially complied with the LAPA, including " the LAPA's
    built in compliance mechanism of legislative oversight." The Department asserts that it
    is indisputable that it complied with the statutorily prescribed steps in the rulemaking
    process and that its compliance was confirmed by the legislature' s acceptance of the
    oversight report.
    In        response,     June    Medical    asserts    that    the    Department' s      evidence   was
    conclusory and summary judgment was properly granted in its favor.                              June Medical
    argued that it was entitled to judgment as a matter of law because the Regulations
    were adopted '          without substantial compliance with required rulemaking procedures."
    Specifically,         June   Medical   asserted    that     the   Regulations      were      adopted   without
    complying with notice and comment rulemaking, namely:
    1)      The Department failed to fully consider all written and oral public comments
    submitted regarding the Regulations, and
    2)
    The Department failed to adequately respond to the comments, including by
    failing to describe the reasons for and against adoption of the changes
    suggested in the public comments.
    In   support   of   its   motion,   June       Medical   submitted   over   500    pages   of
    documentation, including letters, emails, affidavits, and memoranda, in connection with
    the rulemaking process for the Regulations.             Particularly, June Medical points to the
    global response by the Department, which provided, in pertinent part:
    Numerous public comments were received regarding the proposed Rule.
    The Department will take these comments into consideration as we move
    forward with the administrative rulemaking process to establish clear and
    concise provisions governing the licensing standards for abortion facilities.
    June Medical maintained that the Department' s response, on its face, failed to
    substantially comply with the LAPA as the response was not a response to the public' s
    comments.      June Medical further asserted that it presented evidence that the timeline
    of events and internal correspondence established that the Department could not have
    possibly fully considered the public comments as required by the LAPA.
    In response to June Medical' s motion, the Department offered the affidavit of
    Veronica Dent, a Program Manager for the Department.                  In her affidavit, Ms. Dent
    stated that to ensure substantial compliance with the rulemaking process, particularly
    responses to the numerous comments submitted after notice of the rules was provided,
    the rulemaking section of the Department sought guidance and approval from the State
    Register.   She further attested that the Department received a large box containing
    thousands of comments after publishing the required notice of the rules and that
    e] ach of these comments was reviewed by [ the Department's] rulemaking staff and a
    global response was issued."       Ms. Dent also stated that many of the comments were
    form   letters that were     bundled   inside     of the    large   box and   contained    nothing
    substantive;   that many comments came in by email and that these comments were
    reviewed as they were received; and that global responses to large numbers of
    comments are permitted and this was verified by the State Register.
    7
    Further, Ms. Dent attested that a rule does not have to be revised to include
    substantive comments and this can be verified by the State Register; that the rules
    were properly filed with the State Register; that the required legislative oversight report
    was sent to the legislative committee and there was no legislative objection or
    legislative hearing scheduled, thus the oversight report and any revisions thereto was
    accepted by the legislature; and that the approved economic and fiscal impact
    statements of the rules were filed with the Department of the State Register and
    published   in   the   Louisiana    Register.    Lastly,   Ms.   Dent   stated   that   it was   her
    understanding that if a rule is out of compliance with the rulemaking process, the State
    Register will publish the rule and note that it was not promulgated in compliance with
    the LAPA and that the rules at issue did not contain this type of notation from the State
    Register.
    The    basis     for   June   Medical' s   motion    for   summary    judgment      was    the
    Department's failure to consider and to adequately respond to the public comments.
    Although    June   Medical argues that the Department failed to review the many
    comments, Ms. Dent attested that all public comments were reviewed and considered
    as they were received.          Additionally, despite June Medical' s contention that the
    Department' s response to the comments was insufficient on its face, Ms. Dent's affidavit
    establishes that many of the comments were form letters and contained nothing
    substantive and that the global response to the thousands of comments was permitted,
    as verified by the State Register. June Medical failed to show that a global response
    was not permitted under these circumstances.
    Accordingly, based on our de novo review, we find that June Medical failed to
    present sufficient evidence to establish that there were no genuine issues of material
    fact that the Department failed to substantially comply with the rulemaking process as
    required by the LAPA.        Therefore, June Medical' s motion for summary judgment was
    improperly granted, and we reverse the summary judgment in favor of June Medical.
    CONCLUSION
    For the foregoing reasons, we reverse the January 3, 2019 summary judgment
    of the district court and remand this matter to the district court for further proceedings.
    All costs of this appeal are assessed to the plaintiff, June Medical Services, LLC d/ b/ a
    Hope Medical Group for Women.
    REVERSED AND REMANDED.
    E
    

Document Info

Docket Number: 2019CA0191

Filed Date: 3/4/2020

Precedential Status: Precedential

Modified Date: 10/22/2024