Jeff Landry, the Attorney General for the State of Louisiana, issued a memorandum (see below) today to the Civil District Court for the Parish of Orleans, supporting the new Statute of Limitations law regarding child sex abuse crimes that was passed by the Governor earlier this year.
The case resides in Division E, Section 7 of the courts, and is in reference to the Case No. 2020-05419, “Harry T. Doe Versus Jesuit High School of New Orleans; US Central and Southern Province, Society of Jesus,” and was in response to the Peremptory Exception Pleading The Objection Of Prescription filed on the behalf of the defendants.
In the conclusion of Landry’s memorandum, he said “In the instant matter, the Attorney General urges this court to decline to hear the issue of constitutionality of Act 322, as it does not comport with jurisprudential requirements or statutory requirements for bringing a constitutional challenge. Jesuit has failed to meet the heavy burden necessary to overcome the presumption of constitutionality. Therefore, Act 322 and La. 9:2800.9 should be upheld.”
What would seem to be a clear win for victims of childhood sex abuse in the state, which it is for Harry T. Doe, the memorandum does not apply to all such cases pending in the courts. However, it does send a clear signal as to Landry’s opinion and intent as to whether the new law is constitutional.
Jillian Coburn, Board Member for Survivors of Childhood Sex Abuse (SCSA) said “We were initially elated about the new law being passed, only to be disappointed that the church would argue the constitutionality of the law.” She continued “The Louisiana Council of Bishops opposed the new law, but then the Archbishop of New Orleans, Gregory Aymond, who is the Chairman of the council, publicly said he supported the new law, and now the Jesuit order opposes it with the constitutionality argument – we wish they would make up their minds.”
In the past, these types of litigation tactics, moving priests around, and requiring the silence of their victims, the Catholic Church has been successful in exhausting the Statute of Limitations, but with Landry’s decision, it looks like it is further cemented as the law of the land.
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
- 2020-05419 DIVISION E SECTION 7
HARRY T. DOE
VERUS
JESUIT HIGH SCHOOL OF NEW ORLEANS; U.S CENTRAL AND SOUTHERN PROVINCE, SOCIETY OF JESUS
**************************************************************
MEMORANDUM BY THE STATE OF LOUISIANA
IN RESPONSE TO THE PEREMPTORY EXCEPTION PLEADING THE OBJECTION OF PRESCRIPTION FILED ON BEHALF OF THE DEFENDANTS
MAY IT PLEASE THE COURT:
NOW INTO COURT, through undersigned counsel, comes Jeff Landry, in his official capacity as Attorney General for the State of Louisiana, who respectfully submits this legal memorandum for purposes of defending the constitutional challenge to Act 322 of 2021 and La. R.S. 9:2800.9.
BACKGROUND
As the Attorney General’s office is not a party to the instant litigation, its knowledge of the facts is limited to the pleadings it has received from the parties. Undersigned counsel understands the facts to be as follows: In 2020, Harry T. Doe sued Jesuit for damages he claims he sustained as a result of alleged sexual abuse by certain of defendants’ employees. The alleged abuse occurred in the 1970s, when Mr. Doe was a minor. According to Mr. Doe’s petition, the abuse purportedly took place both on and off the Jesuit High School campus and was committed by two janitors or custodial workers employed by Jesuit High School.
Jesuit filed a peremptory exception pleading the objection of prescription, contending that Mr. Doe’s claims had prescribed pursuant to the one-year prescriptive period provided by La. C.C. art. 3492. Jesuit also acknowledged the legislative changes that had occurred since the 1990s, including La. C.C. art. 3496.1, which provided that an action against a person for abuse of a minor
was subject to a liberative prescriptive period of three years, which “commences to run from the day the minor attains majority.” In addition, the Louisiana Legislature enacted La. C.C. art. 3498.1,1 which provided that an action against a person for sexual abuse of a minor was subject to a liberative prescriptive period of ten years that did not commence to run until the minor attained majority and “is suspended for all purposes until the minor reaches the age of majority.”
It appears undisputed that Mr. Doe’s claims were prescribed on their face; however, in his initial opposition, Mr. Doe set forth several theories that purportedly defeated Jesuit’s exception of prescription. Specifically, Mr. Doe proposed theories of (1) Fraudulent Concealment (contra non valentem); (2) Continuing Tort; (3) Acknowledgment; (4) Renunciation; (5) Natural Obligation; (6) Equity; and/or (7) Waiver.
Thereafter, in June 2021, Mr. Doe filed a pleading entitled Plaintiff’s Motion and Incorporated Memorandum to Strike Exception of Prescription and/or Opposition to Exception of Prescription, in which he referenced Act 322 of 2021, which amended La. R.S. 9:2800.9(A)(1) to provide that an action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, does not prescribe.2 Act 322 further provides for a revival, for a period of three years, of any claims against a party that prescribed prior to the effective date of the Act.3 According to the plaintiff, because of the provisions of Act 322, his claims against Jesuit have been revived to the extent that they had already prescribed.
Jesuit filed a memorandum in support of their earlier exception of prescription and in opposition to the plaintiff’s motion to strike, setting forth several claims. As a preliminary matter, Jesuit contend that Section 2 of Act 322 (the revival provision) does not apply to its exception of prescription because: (1) the claims against Jesuit prescribed against separate law, not under § 9:2800.9—and thus, any “revival” of claims prescribed under § 9:2800.9 has no application to this case; (2) Act 322 amended and narrowed the application of § 9:2800.9 such that, even if it applied at all, it would not apply to Jesuit’s claims because (i) Jesuit had no duty to supervise a non-student and (ii) the extension to “supervisory” entities has been amended out of the statute; (3) the revival provision confines itself to “parties” not persons, and thus is limited to natural
1 La. C.C. art. 3498.1 was subsequently redesignated as La. R.S. 9:2800.9.
2 2021 La. Acts No. 322, § 1, effective 6/14/2021.
3 2021 La. Acts No. 322. § 2, effective 6/14/2021.
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persons who are parties to the abuse; and (4) the revival provision does not apply to pending litigation.
In addition, Jesuit argues that the revival of Mr. Doe’s claim against it would be unconstitutional. The State of Louisiana, through the Department of Justice and Attorney General Jeff Landry in his official capacity, submits this memorandum solely on the issue of the constitutionality of Act 322. This office takes no position of the rest of the issues raised by the parties.
LAW AND ARGUMENT
- THE ISSUE OF THE CONSTITUTIONALITY OF ACT 322 IS NOT PROPERLY BEFORE THIS COURT.
- The Constitutionality of a Statute Must Be Specially Pled and the Grounds for the Claim Particularized.
It is a long-standing jurisprudential rule of law that;
[A] state statute must first be questioned in the trial court, not the appellate courts, and the statute must be specially pleaded and the grounds for the claim particularized. The pleadings allowed in civil actions are petitions, exception, written motions and answers. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, and amended and supplemental petition or a petition in an incidental demand), and exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.
Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 865 (internal citations omitted).
While there is no single procedure for attacking the constitutionality of a statute, the courts have long held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. State v. Schoening, 00-0903 (La. 10/17/03), 770 So.2d 762, 764 (citing Vallo, 646 So.2d at 864-865). The Supreme Court has expressed the challenger’s burden as a three-step analysis. First, a party must raise the unconstitutionality in the trial court; second the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Vallo, 646 So.2d at 864-865.
- Jesuit Failed to Particularize its Constitutional Claim.
Jesuit raised the constitutional issue in its Second Amended Peremptory Exception of Prescription. However, Jesuit failed to particularize their claim, as the exception merely states:
In the alternative, the application of these amendments to Mr. Doe’s prescribed claims against JHS would violate due process and would render the legislation (if and as applied to JHS) an unconstitutional bill of attainder. JHS specifically submits
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that to apply these amendments to La. Rev. Stat. 9:2800.9 in a manner that would revive Mr. Doe’s prescribed claims against JHS would be unconstitutional.
The Supreme Court has thoroughly considered the standard for particularizing the constitutional grounds. The purpose of particularizing the constitutional grounds is so that the adjudicating court can analyze and interpret the language of the constitutional provision specified by the challenger. State v. Expunged Record (No.) 249,044, 03-1940 (La. 7/2/04), 881 So.2d 104, 107 (citing Louisiana Mun. Ass’n v. State, 00-374 (La. 10/6/00), 773 So.2d 663, 667 (“In adjudicating [a] constitutional challenge, the court must analyze and interpret the language of the constitutional provision specified by the challenger.”)). This basic principle dictates that the party challenging the constitutionality of a statute must cite to the specific provisions of the constitution that prohibits the action. State v. Fleury, 01-0871 (La. 10/16/01), 799 So.2d 468, 472.
Jesuit makes only the most general of references to the constitution, without providing any citation to the specific provisions to the constitution that allegedly prohibit the enactment of Act 322. Furthermore, it is unclear from a reading of defendants’ pleading whether defendants are challenging the constitutionality based on the United States Constitution or the Louisiana Constitution or both. Therefore, the issue of constitutionality is not properly before this court.
- STANDARD GOVERNING CONSTITUTIONAL CHALLENGES A. Act 322 is presumed constitutional.
To the extent that this Honorable Court finds that the issue of constitutionality is properly before it, although the Office of the Attorney General maintains that it is not, Defendants have not met the heavy burden of proving that the legislation at issue is unconstitutional.
It is well-established that all statutory enactments are presumed constitutional and every presumption of law and fact must be indulged in favor of legality. Moore v. RLCC Technologies, Inc., 95-2627 (La. 2/28/96), 668 So.2d 1135; Faul v. Trahan, 98-488 (La. App. 3 Cir. 10/7/98), 718 So.2d 1081, 1087. The presumption is especially forceful in the case of statutes enacted to promote a public purpose.4 Polk, et al v. Edwards, et al., 626 So.2d 1128, 1132 (La. 1193) (citing Board of Directors of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, etc., 529 So.2d 384, 387 (La. 1988); See also United States v. Jacobs, 306 U.S. 363, 369-70, 59 S.Ct. 551, 555, 83 L.Ed. 763 (1939). The legislature is given great deference in the judicial determination of a
4 Act 322 was enacted to change the prescriptive periods for civil actions against a person: (1) for sexual abuse committed against a minor; or (2) convicted of a crime against the child, so that these actions do not prescribe.
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statute’s constitutionality, and legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation. Greater New Orleans Expressway Commission v. Olivier, 04-2147 (La. 1/19/05), 892 So.2d 570, 573.
Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving it is unconstitutional. State v. Brenan, 99-2291 (La. 5/16/00), 772 So.2d 64, 67. The burden defendants carry in challenging the constitutionality of a statute is a heavy burden. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Hite v. Larpenter, 04-1821 (La. App. 1 Cir. 9/23/05), 923 So.2d 140, 145, writ denied, 05-2255 (La. 3/10/06), 925 So.2d 511; see also La. Const. art. I, § 1; Swift v. State, 342 So.2d 191, 194 (La.1977). To successfully challenge a legislative act as unconstitutional on its face, the challenger must establish that no circumstances exist under which the act would be valid. City of New Orleans v. La. Assessors’ Retirement & Relief Fund, 2005- 2548 (La. 10/1/07), 986 So.2d 1, 2-3.
The legislature, elected by the state’s citizenry, may enact any legislation that the Constitution does not explicitly prohibit; thus, the legislature has all powers that have not been denied it by the Constitution. In re American Waste & Pollution Control Co., 588 So.2d 367, 373 (La. 1991). Unlike the federal government, which has only those powers which are granted to it by the state, the Louisiana Legislature has all powers which have not been denied it by the state constitution. Bd. of Dirs. of the La. Recovery Dist. v. All Taxpayers, Property Owners, & Citizens of La., 529 So.2d 384, 387 (La. 1988); Bd. of Comm’rs v. Dept. of Natural Resources, 496 So.2d 281, 286 (La. 1986). The legislature’s powers are derived from the citizens of the state who freely elect their legislative representatives; alternatively stated, the provisions of the Louisiana Constitution serve as limitation on the otherwise plenary power exercised by the legislature, which may enact any legislation not prohibited by the Constitution. Polk, 626 So.2d at 1132 (citing State Bond Comm’n of the State of La. v. All Taxpayers, Property Owners & Citizens, 525 So.2d 521 (La. 1988)). Thus, in order to hold legislation invalid under the Constitution, it is necessary to rely on some particular constitutional provision that limits the legislature’s power. Polk, 626 So.2d at 1132 (citing In re American Waste & Pollution Control Co., 588 So.2d 367 (La. 1991)).
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The party challenging a statute’s constitutionality bears the burden of clearly proving the legislation is invalid or unconstitutional. Specifically, the party must rely upon a constitutional provision that restricts the legislature’s authority to enact the particular legislation and must establish that the legislation is barred by such provision. Id.; see also State Bond Comm’n, 525 So.2d at 525. Any doubt as to the legislation’s constitutionality must be resolved in favor of constitutionality. Bd. of Directors of La. Recovery District, 529 So.2d at 387-388.
Because of the presumption of constitutionality in determining the validity of a constitutional challenge, a court “must construe a statute so as to preserve its constitutionality when it is reasonable to do so.” M.J. Farms, Ltd. v. Exxon Mobil Corporation, 998 So.2d at 31. In addition, when deciding whether a particular legislative enactment is unconstitutional, this Court has repeatedly stated that it is not the court’s “duty to determine the wisdom behind the enactment of [the] legislation.” M.J. Farms, 998 So.2d at 34. Thus, so-called “policy considerations” are not relevant to the decision, as such considerations are more appropriately presented to the legislature, in the first instance, when the pros and cons of a proposed law are being debated. M.J. Farms, 998 So.2d at 34. Lastly, “[u]ntil an act of the Legislature is declared unconstitutional by the final decisions of the courts, its provisions must be respected and obeyed.” State ex rel. Porterie v. Jones, 159 So. 594, 598 (La. 1935).
- Courts should only decide constitutional challenges when required to do so.
The presumption in favor of the validity of state laws, the heavy burden of proof, and the deference required to be given to the legislature all speak to the fact that the constitutionality of state laws is not an issue that a court can approach lightly; rather, it is an issue of grave constitutional significance which the courts address and decide only where it is properly raised and movers have carried their heavy burden of proof.
Although this court generally possesses the power and authority to decide the constitutionality of the provisions challenged in defendants’ second peremptory exception of prescription, it is required to decide a constitutional issue only “if the procedural posture of the case and the relief sought by the appellant demand that [it] do so.” State v. Mercadel, 2003-3015 (La. 5/25/04), 874 So.2d 829, 834 (citing Ring v. State, DOTD, 2002-1367 (La. 1/4/03), 835 So.2d 423, 428). Stated another way, courts do not generally reach or determine constitutional issues unless, in the context of a particular case, the resolution of such issues is necessary to decide the
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case. White v. West Carroll Hospital, Inc., 613 So.2d 150, 157 (La.1992). In fact, “[f]or well over a century, the [Supreme Court] has consistently refrained from entertaining questions as to the constitutionality of laws except where that determination is essential to the decision.” Edwards v. Legislature, 20-1407 (La. 12/21/20), 315 So.3d 213, 215.
The Office of the Attorney General notes that Mr. Doe has alleged that his cause of action has not prescribed under various theories other than pursuant to the revival provision of Act 322. In addition, defendants have alleged that Act 322 does not apply to them for various reasons. Thus, it is the position of this office that it is not necessary to reach the resolution of the constitutional issues.
III. ACT 322 DOES NOT VIOLATE DUE PROCESS.
Act 322 amended and reenacted La. R.S. 9:2800.9(A) so that it now provides:
A.(1) An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, does not prescribe.
(2) An action against a person convicted of a crime against the child does not prescribe and may be filed at any time following conviction. “Crime against the child” has the same meaning as provided in Children’s Code Article 603.
In addition, Section 2 of Act 322 provides:
Section 2. For a period of three years following the effective date of this Act, any party whose action under R.S. 9:2800.9 was barred by liberative prescription prior to the effective date of this Act shall be permitted to file an action under R.S. 9:2800.9 against a party whose alleged actions are the subject of R.S. 9:2800.9. It is the intent of the legislature to revive for a period of three years any claim against a party, authorized by R.S. 9:2800.9, that prescribed prior to the effective date of this Act. (emphasis added.)
- Act 322 provides a clear and unequivocal expression of legislative intent to revive prescribed causes of action.
Jesuit contends that the revival clause violates due process because it deprives them of a vested right. However, this argument is without merit.
In Chance v. American Honda Motor Co., Inc., 93-2582 (La. 4/11/94), 635 So.2d 177, the Supreme Court addressed the issue of whether the retroactive application referred to in La. C.C. art. 6 extends to revive previously time-barred causes of action. In that case, the court stated:
Although prescriptive statutes are generally procedural in nature, the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiffs claim. La.Code Civ.P. arts. 927 & 934. Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992) (“Substantive laws either establish new rules, rights, and duties or change existing ones.”); Thomassie v. Savoie, 581 So.2d 1031, 1034 (La. App.
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1st Cir.1991) (“[I]f a statute which is remedial or procedural also has the effect of making a change in the substantive law, it must be construed to operate prospectively only.”). Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. Guided by the principles established in [La.C.C.] article 6 [which provides that substantive laws apply prospectively only], we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an “extreme exercise of legislative power.” (Footnote omitted.)
Chance, 635 So.2d at 178.
Likewise in Cameron Parish School Bd. v. AC and S, Inc., 96-0895 (La. 1/14/1997), 687 So.2d 84, the Supreme Court again considered the issue of the revival of a previously prescribed claim and employed the Chance analysis. Although the court noted that the legislature directed that the statute in question was to apply to “any action,” the court found:
[L]iberal use by the legislature of the word or phrases “action,” “any action,” “all actions,” and “any and all actions” in these prescriptive statutes supportive of our determination that the legislature, in using such wording in the statute at issue herein, has not clearly and unequivocally expressed an intent to revive an already prescribed cause of action….
…
[T]he language used in the statute does not contain any reference to revival of prescribed claims. Moreover, the legislative history of this statute gives no indication of any intent on the part of the legislature that this statute should apply to revive causes of action which had already prescribed under the law existing prior to the statute’s enactment.
Cameron Parish School Board, 687 So.2d at 91.
Unlike the provisions in Chance and Cameron Parish School Board, Act 322 has a clear and unequivocal expression of legislative intent that the amendment to La. R.S. 9:2800.9 should act to revive causes of action which had already prescribed under the law existing prior to the statute’s enactment. Moreover, the legislative history attached to Jesuit’s memorandum as Exhibit A further supports this interpretation. Given the clear expression of legislative will, the great deference afforded to the legislature in these matters,5and the analysis in Chance and its progeny, the Office of the Attorney General submits that the revival provision is constitutional.
- The revival clause of Act 322 does not violate substantive due process.
Substantive due process may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life, liberty, or property. The essence of substantive due process is protection from arbitrary and unreasonable action. Babineaux v. Judiciary Comm’n, 341 So. 2d 396, 400 (La. 1976). The first step in the analysis of a claimed substantive due process
5In re American Waste & Pollution Control Co., 588 So.2d 367, 373 (La. 1991).
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violation is the determination whether there is a property or liberty interest that is being infringed upon. This court has held that, in order to prove a violation of substantive due process, a party must first establish the existence of a constitutionally-protected property or liberty interest. State v. Bazile, 2012-2243 (La. 5/7/13), 144 So.3d 719, 730; Oliver v. Orleans Parish School Bd., 2014- 0329, 2014-0330 (La. 10/31/14), 156 So.3d 596, 629-30.
Jesuit argues that the revival clause would deprive it of a vested right to defend itself against a claim by the running of prescription. See Falgout v. Dealers Truck Equip. Co., 98-3150 (La. 10/19/99), 748 So.2d 399, 407. However, even assuming that the revival clause would deprive Jesuit of a vested right, the inquiry does not stop there.
The court must next turn to whether Jesuit’s substantive due process rights were violated. Assuming for the sake of argument that Jesuit has established the existence of a constitutionally protected property or liberty interest, a violation of substantive due process still requires arbitrary and capricious conduct by the governing authority. Coxe Property Management and Leasing v. City of New Orleans, 2019-0911 (La. App. 4 Cir. 4/8/20), 294 So.3d 1098, 1104 (citing Boudreaux v. Larpenter, 2011-0410 (La. App. 1 Cir. 6/11/12). 110 So.3d 159, 170. Government action comports with substantive due process if the action is rationally related to a legitimate governmental interest.” Id.
Louisiana has a legitimate interest in protecting its citizens who were sexually abused as minors and in providing them with the ability to seek redress in the courts. A small window of time allowing for a revival of actions that had prescribed is rationally related to this legitimate governmental interest. The legislature is the body that had originally set the prescriptive period,
and it is within the power of the legislature to change that prescriptive period. Thus, the legislature’s action is not arbitrary and capricious and does not violate substantive due process.
- THE REVIVAL OF THE PRESCRIBED CLAIMS AGAINST DEFENDANTS DOES NOT VIOLATE CONSTITUTIONAL PROHIBITIONS AGAINST BILLS OF ATTAINDER.
The United States Constitution prohibits state legislatures from enacting bills of attainder.6 Jesuit argues that the revival of the prescribed claims would constitute an unconstitutional bill of attainder.
6 U.S. Const. art. I § 10; see also La. Const. art. I, § 23.
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The United States Supreme Court has defined such bills as “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial….” United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1965). The revival clause does not meet this definition. It does not apply to named individuals or to easily ascertainable members of a group; rather, it applies to anyone who has engaged in the proscribed conduct. In addition, it does not apply punishment without a judicial trial. Indeed, it does not apply any punishment at all. Even if it revives a cause of action that had prescribed, the plaintiff must still prove his or her case against the defendant before any damages can be assessed. Thus, Jesuit’s argument is without merit.
CONCLUSION
In the instant matter, the Attorney General urges this court to decline to hear the issue of constitutionality of Act 322, as it does not comport with jurisprudential requirements or statutory requirements for bringing a constitutional challenge. Jesuit has failed to meet the heavy burden necessary to overcome the presumption of constitutionality. Therefore, Act 322 and La. 9:2800.9 should be upheld.