author: MAX N. TOBIAS, JR, Judge. CANNIZZARO, J., LOVE, J., LOMBARD, J., BELSOME, J.,

text:
    Rashi REED v. DEPARTMENT OF POLICE Donna Aubert v. Department of Police Shyra Allen v. Department of Police Willie Lee v. Department of Police Ronald Moore v. Department of Police Eric Doucette v. Department of Police Carl Davis v. Department of Police Shawn Madison v. Department of Police Rhonda Hill v. Department of Police Kermit Henry v. Department of Police Errol Washington v. Department of Police Leander Winford v. Department of Police.
    Nos. 2006-CA-1498, 2006-CA-1500, 2006-CA-1647, 2007-CA-0171, 2007-CA-0360, 2007-CA-0361, 2007-CA-0364, 2007-CA-0366, 2007-CA-0367, 2007-CA-0368, 2007-CA-0796, 2007-CA-0797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 2007.
    Rehearing Denied Nov. 15, 2007.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Rashi Reed, Eric Doucette and Rhonda Hill.
    Cheryl Mitchel Gaines, Silver Spring, MD, for Donna Aubert.
    Kenneth M. Plaisance, New Orleans, LA, for Shyra Allen and Willie Lee.
    Frank G. DeSalvo, DeSalvo DeSalvo & Blackburn, APLC, New Orleans, LA, for Ronald Moore.
    Rowena T. Jones, New Orleans Legal Assistance Corporation, New Orleans, LA, for Shawn A. Madison.
    James E. Stovall, Covington, LA, for Leander Winford.
    James B. Mullaly, Assistant City Attorney, Penya Moses-Fields, City Attorney, Heather M. Valliant, Assistant City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DENNIS R. ■ BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME.
   MAX N. TOBIAS, JR, Judge.

|,We consolidated these matters solely to consider the common issue of whether the New Orleans Civil Service Commission (“CSC”) erred as a matter of law by holding that because the New Orleans Police Department (“NOPD”) did not hold pre-termination hearings pursuant to CSC Rule IX, § 1.2, the discipline imposed against the plaintiffs/appellees, all NOPD officers, was illegal. For the reasons that follow, we hold that Hurricane Katrina, with its effects upon the city of New Orleans and its government, was an extraordinary event such that the NOPD could discipline the officers without a pre-termi-nation hearing. We further hold that, under these unique circumstances, a post-termination hearing, which allows the accused officer an opportunity to present all relevant evidence he/she would have introduced at a pre-termination hearing to overturn the NOPD’s | ¿decision, satisfies the due process requirements of both the United States and Louisiana Constitutions.

The only issue before us is whether these officers were denied due process for the NOPD’s failure to grant them a pre-termination hearing. In Cleveland Bd. of Education, v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), the United States Supreme Court stated:

An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). We have described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” FN7 Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570. As we pointed out last Term, this rule has been settled for some time now. Davis v. Scherer, 468 U.S. 183, 192, n. 10, 104 S.Ct. 3012, 3018, n. 10, 82 L.Ed.2d 139 (1984); id., at 200-203, 104 S.Ct. 3022-3024 (BRENNAN, J., concurring in part and dissenting in part). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond. For example, in Arnett six Justices found constitutional minima satisfied where the employee had access to the material upon which the charge was based and could respond orally and |nin writing and present rebuttal affidavits. See also Barry v. Barchi 443 U.S. 55, 65, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979)(no due process violation where horse trainer whose license was suspended “was given more than one opportunity to present his side of the story”). [Emphasis added.]

In footnote seven referenced above, the Court recognized an exception:

There are, of course, some situations in which a postdeprivation [sic] hearing will satisfy due process requirements. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908). [Emphasis added.]

In Bell v. Dep’t of Health and Human Res., 483 So.2d 945 (La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986), the Louisiana Supreme Court stated:

The provisions of the state constitution involving the Civil Service, Article X, § 1 et seq., and the Rules of the Commission are designed to secure adequate protection to the public career employee from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the Civil Service Rules is to guarantee the security and welfare of the public service. Sanders v. Department of Health & Human Resources, 388 So.2d 768 (La.1980) (emphasis added). With this in mind, it is clear that tenure or classified civil service status is a property right within the meaning of Article I, § 2 of our constitution, a prerequisite to a due process challenge. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980). Under our constitution and the Civil Service Rules, an employee who has gained classified permanent civil service status has an entitlement to his position, since he has already received the position, and applicable law guarantees him continued employment, save for some exceptions (i.e. disciplinary sanctions for cause). Cleveland Bd. of Educ. v. Loudermill, supra; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Having concluded that a classified permanent employee enjoys a property right in maintaining his status, it is axiomatic that his position may not be changed or abolished without due process of law. Cleveland Bd. of Educ., supra. The question becomes what process is due.
The decisions of the United States Supreme Court, as well as the jurisprudence of this state, underscore the truism that “ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). It is a flexible standard and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It is particularly flexible in the area of administrative law. See Smith v. Division of Admin., 415 So.2d 381 (La.App. 1st Cir.1982); Hamilton v. La. Health & Human Resources Admin., 341 So.2d 1190 (La.App. 1st Cir.1976), writ refused, 344 So.2d 4 (La.1977). Where the power of the government or an agency is to be used against an individual there is a right to a fair procedure to determine the basis for, and the legality of, such action. Nowak, J., et al., Handbook on Constitutional Law, Ch. 15, p. 477 (1978).

Id. at 949-50. [Underlined emphasis added.]

In Fields v. State Through Dept. of Public Safety and Corrections, 98-0611, pp. 7-8 (La.7/8/98), 714 So.2d 1244, 1251, the Supreme Court clarified its position:

Generally, before a person is deprived of a protected interest, he must be afforded some kind of hearing. However, this court has often recognized there may be circumstances involving a valid governmental interest which justify postponing the hearing until after the event. In re Adoption of B.G.S., 556 So.2d 545, 553 (La.1990). A deprivation without opportunity for a prior hearing or other effective substitute safeguard has been allowed in “extraordinary” or “truly unusual” situations. Paillot v. Wooton, 559 So.2d 758, 762 (La.1990). “[E]mergency action may be proper pending a hearing when matters of public health and | ^safety are involved.” Id. See also Wilson v. City of New Orleans, 479 So.2d 891 (La.1985) and Bell v. Department of Health and Human Resources, 483 So.2d 945, 951(La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986) (“[W]e note that there seems to be an emerging concept that in some instances due process is fulfilled by a ‘post deprivation’ hearing. We believe that this view to procedural due process in certain situations is sound and is in support of our decision here.”).

Id. [Emphasis added.]

It is unnecessary for this court to describe the emergency conditions existing in New Orleans during and after Hurricane Katrina. Thus, we note the obvious negative effect that an absence of discipline for these officers would have on those who remained at their posts under the most unusual and trying of circumstances. In Stevens v. Department of Police, 00-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627, we stated:

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman, supra [v. Department of Fire, 425 So.2d 753 (La.1983) ]. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.

We can hardly envision a scenario when enforcing appropriate standards of conduct was ever more important than in the aftermath of Hurricane Katrina. In addition, we find that the CSC’s rulings relying solely on the absence of a pre-termination hearing when truly extraordinary circumstances present themselves would set a dangerous precedent on future disciplinary actions of the NOPD.

| fiFor the foregoing reasons, we find that the CSC erred in reversing the orders of discipline against the plaintiffs/appellees on the sole basis that no pre-termination hearings were afforded to them.

We therefore vacate the decisions of the CSC in each of these consolidated cases. We remand the cases to the CSC for them to receive from the parties such additional evidence as necessary to appropriately resolve each of the cases and to render a judgment on the merits of each case. In that regard, the CSC is ■ specifically instructed to permit each of the plaintiffs/ap-pellees to introduce at the post-termination hearing such additional evidence as he or she might have provided to the appointing authority at a pre-termination hearing if same had been afforded. The right of each party to appeal a new subsequent judgment of the CSC following its ruling on the merits of each case is preserved.

JUDGMENTS VACATED; REMANDED WITH INSTRUCTIONS.

CANNIZZARO, J., Concurs with Reasons.

BAGNERIS, J., Dissents for the Reasons Assigned by Judge LOMBARD.

LOVE, J., Dissents.

LOMBARD, J., Dissents.

BELSOME, J., Dissents with Reasons.

CANNIZZARO, J.,

Concurs with Reasons.

IJ concur in the result reached by the majority in that the New Orleans Civil Service Commission erred as a matter of law under the extraordinary circumstances of this case by requiring that the N.O.P.D. conduct a pre-termination hearing prior to disciplining the officers.

However, I would pretennit any and all discussion with regard to the remaining assignments of error since they are not germane to the issue of a pre-termination hearing.

Furthermore, the record does not reflect nor should we speculate as to the impact or effect of the discipline (or lack thereof) on other members of the N.O.P.D.

LOVE, J.,

Dissents.

Li respectfully dissent for the reasons assigned by Judge Lombard.

LOMBARD, J.,

Dissents.

| /‘The Constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his [property rights].” Wilson v. City of New Orleans, 479 So.2d 891, 894 (La.1985). It is undisputed that, historically, due process has been a fundamental precept of our legal system, see Baldwin v. Hale, 1 Wall. 223, 17 L.Ed. 531 (1864), or that the right to notice and an opportunity to be heard must be granted at “a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

During and immediately after Hurricane Katrina swept through New Orleans on August 29, 2005, some police officers were absent from their posts. Nearly two months later, on October 24, 2005, letters were mailed to this group of officers, terminating them without any notice or opportunity to be heard, even though — as in the case of Officer Reed — many had contacted their supervisors in the days immediately following the hurricane, were advised of a 30-day suspension, | ¿returned to New Orleans and were in contact with their immediate supervisors regarding reporting to duty at the end of the suspension period. In sanctioning the City’s illegal termination of the officers nearly two months after Hurricane Katrina, the majority ignores the clear-cut procedural due process requirements of the federal and state constitutions, as well as the Rules of the New Orleans Civil Service Commission, and creates a dangerous new precedent.

Even in extraordinary circumstances, an individual whose interests may be affected by a deprivation of life, liberty, or property must be granted a fair procedure before a fair decision maker. In some cireum-stances, due process may not require a full-blown, trial-type hearing, but that is not to say that some sort of rudimentary precautions afforded by an informal notice and opportunity to respond are not necessary. Due process is a flexible standard, Morrissey v.Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and courts have been flexible in finding that a meaningful and prompt post-deprivation process will suffice where prior notice and opportunity to be heard is not a meaningful protection. Significantly, however, no other court |shas ever sanctioned a permanent deprivation/termination of employment implemented without pre-deprivation/pre-ter-mination of employment notice and hearing.

While it may be emotionally satisfying or politically expedient to circumscribe the rights of a police officer accused of deserting his post in the midst of a community disaster, to do so in this case sets a dangerous precedent, curtailing important constitutional protections and overriding the long-held bright-line rule that a permanent deprivation requires pre-deprivation due process. Even accepting arguendo that Hurricane Katrina was an extraordinary event allowing for the temporary curtailment of constitutional protections, these terminations took place nearly two months after that event.

The majority asserts, however, that the violation of the constitutional rights of these police officers should be sanctioned because “an absence of discipline” will result in an “obvious negative effect” on other officers who remained at their posts during the chaos and disorder following the levee breach. To mischaracterize procedural due process prior to termination as an “absence of discipline” implies that police officers, alone of civil service employees, are not ^entitled to procedural due process. It is difficult to conceive that adopting this implication — that police officers are not entitled to the same constitutional and statutory protections as other similarly situated persons — will bolster the morale of the police department or validate the decisions of the police officers who reached their designated duty posts and remained throughout the storm’s aftermath. The police department may be a de facto “quasi-military” institution but police officers are classified as civil servants under the law and, until that classification is changed, are entitled to all of the protections (including procedural due process) afforded civil service employees.

Likewise, it is specious to say that due process will be satisfied by allowing the “accused officers” to supplement the record “with all relevant evidence he/she would have introduced at a pre-termi-nation hearing to overturn the NOPD’s decision.” (Emphasis added) The purpose of the right to be heard is to minimize the likelihood of a substantially unfair or mistaken deprivation. Thus, the intimation that a termination decision is pre-deter-mined before the hearing, subordinating the hearing itself to an appeal of that decision, suggests a departure from the basic standards of due process.

Finally, the termination letter sent by the City, citing a civil service rule as the sole basis for dismissal is contrary to the clear language of Civil Service Rule IX and thus, as observed by the Commission, the officers have yet to be charged |Bwith a violation of an internal police department rule. Presumably, the police department’s internal rules address the officers’ actions in these cases and, as the issue before the court is whether' the officers were afforded their constitutional and statutory rights to notice and opportunity to be heard, not whether the officers’ actions should ultimately serve as a basis for their termination, I disagree with the conclusion that the NOPD’s failure to site a specific internal rule “is without moment.”

Major disasters do not permit the curtailment of constitutional protections. Accordingly, I would affirm the Civil Service Commission’s determination that a termination without the requisite due process is illegal.

For the foregoing reasons, I respectfully dissent.

BELSOME, J.,

Dissents with Reasons.

hi respectfully disagree with the majority’s opinion.

Our Supreme Court has recognized that the Civil Service Commission process was instituted to protect an employee’s position, an acknowledged property right, from unwarranted employer abuses. New Orleans Firefighters Assoc. v. Civil Service Commission of the City of New Orleans, 422 So.2d 402 (La.1982). Potential governmental abuses are avoided through statutory regulations that must pass Constitutional muster. The protection afforded the employees in the instant case is found in Rule IX, § 1.2, which mandates that the appointing authority conduct a pre-termi-nation hearing as well as notify the employee of their infraction.

Recently, the Supreme Court has further directed us to redefine the mandatory language contained within a statute. Marks v. New Orleans Police Department, 2006-0575 (La.2006), 943 So.2d 1028. In Marks the Court found that in the absence of any evidenced prejudice to the employee the word “shall” was directive rather, than compulsory. The “shall” in Marks referred to a 60-day time frame in which to investigate employees’ misconduct. The Supreme Court reasoned that Marks’ right to due process, notice and a right to be heard had not been violated by an investigation that exceeded the mandated 60-days.

|.¿Today we are confronted with the narrow issue of whether or not a post termination hearing meets the minimum due process requirements outlined by the United States Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. In Loudermill the Court addressed what process is due an employee with a constitutionally protected property right. Id. The Loudermill Court found that notice and a pre-termination hearing was the constitutionally adequate procedure to avail an employee of his/her due process rights. Id.

Here we are presented with employees whose hearings came months after they were deprived of their livelihood. No rational court could conclude that the Due Process Clause requirement for a hearing “at a meaningful time” was met. Presumably, the determination of constitutionally protected due process hinges on whether or not the employee is prejudiced by the delay, not whether the employer is inconvenienced by being held to the constitutional standard.

Although the employer has argued, and the majority accepts, that Hurricane Katrina created an urgency that prevented pre-termination hearings, the records are void of any such evidence. Undoubtedly, Hurricane Katrina caused challenging situations that may or may not be designated as emergency conditions. But simply put, the Hurricane Katrina banner cannot be waived every time the government seeks to circumvent the constitution. Permitting such a broad excuse in the very limited question presented today opens the door for potential governmental abuse either through intent, incompetence, or indifference of employee rights. Arguably, this decision may negate collective bargaining agreements, as well as constitutionally protected rights in contract and habeas corpus.

This writer cannot join in an opinion that ignores the prejudice created by depriving an employee of his property right without the opportunity to first be heard and defend that right. The notion that due process was protected and no ^prejudice occurred when the employee was divested of his/her position first and allowed a post termination hearing months later is fictional. Allowing post termination hearings with no limitation on delays effectively abolishes the employees’ constitutional right to due process.

Due process is most vulnerable when it is most warranted.

I dissent.

      . Rule IX, § 1.2 provides:
      In every case of termination of employment of a regular employee, the appointing authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking action.

      . An additional issue raised on appeal was whether the NOPD could rely upon Rule IX, § 1.1 of the CSC Rules as setting forth prohibited conduct by classified employees. Although the termination letters sent to each of the officers did not cite an internal NOPD rule violated by them, the letters stated that the officers had not reported to duty, had abandoned their posts, etc., without permission and/or contact with their chain of command. Under the circumstances, we find the NOPD’s failure to cite a specific internal rule is without moment for such a violation is so obvious that a citation of authority is unnecessary. Thus, we find that Knight v. Department of Police, 619 So.2d 1116, 1120 (La.App. 4 Cir.), writ denied, 625 So.2d 1058 (La.1993), is inapplicable to this case.

      . See also, Goss v. Lopez, 419 U.S. 565, 580, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)(citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951)) (Frankfurter, J., concurring) (" '[FJairness can rarely be obtained by a secret one-sided determination of facts decisive of rights....' ‘Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it.’ ”).

      . Notably, the City submitted no evidence into the record before the Commission or this court to support its claim that exigent circumstances required that due process requirements be cast aside approximately two months after Hurricane Katrina, although asserting that the City should be excused from failing to make any attempt to afford the accused officers minimal notice and opportunity to be heard because of exigent circumstances. Apparently, evidentiary rules as well as constitutional due process should be disregarded with regards to those cases arising out of the Hurricane Katrina aftermath. It is somewhat ironic, however, that the City argues that the catastrophic conditions following Hurricane Katrina created an excuse for the City’s failure to follow clear constitutional mandates while, in effect, arguing that their employees should be afforded no opportunity to explain their own failures in the post-Katrina chaos.

      . Both the Fourteenth Amendment to the United States Constitution and Article I, § 2 of the 1974 Louisiana Constitution specifically protect a person against deprivation of his/her life, liberty, or property with "due process of law”, a term which simply means that persons whose rights may be affected are entitled to be heard and, in order to enjoy that right, must first be notified.

      . "To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense on the merits.” Wilson, supra, (citing Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027 (1915)).

      . See Paillot v. Wooton, 559 So.2d 758, 761 n. 3 (La.1990) (informal hearing process involving merely discussing with student misconduct which has occurred only moments before may be sufficient in some cases but "such opportunity must be provided”; post-deprivation notice and rudimentary hearing sufficient only "when student poses a continued threat of danger to persons or property or disruption to the academic process”).

      . See Bell v. Department of Health and Human Resources, 483 So.2d 945 (La.1986) (employment reallocation) and Wilson, supra (temporary impoundment of a vehicle when the owner fails to present proof of insurance); see also Ewing v. Mytinger Casselbeny, Inc. 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (challenged statute permitting multiple seizures of misbranded articles on a finding of probable cause by an administrator, without a hearing, is not unconstitutional under the due process clause); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (due process of law is not denied the owner or custodian of food in cold storage by a municipal ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned, and destroyed by municipal officers without a preliminary hearing); F.D.I.C. v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988) (bank official not entitled to pre-suspension hearing under statute authorizing suspension from office of indicted official of federally insured bank; important governmental interest in protecting depositors and maintaining public confidence, coupled with the fact that felony indictment provided sufficient assurance that suspension was not baseless, justified prompt action before suspensions hearing was held).

      . See, e.g., Bell, 483 So.2d at 951 (distinguishing termination situation from reallocation); Fields, 714 So.2d at 1255 ("In the instant case, we are dealing only with the temporary impoundment of a motor vehicle because it did not contain the statutorily required proof of insurance”).

      . In a similar vein, the City characterized reinstatement with backpay as a "reward” and argued that its interest in "maintaining the battered public fisc”, combined with the catastrophic conditions following Hurricane Katrina, outweighs any individual's right to a pre-termination hearing as long as some sort of post-deprivation hearing can be devised. Notably, no jurisprudence (including that cited by the City) supports the proposition that concern for public finances in the aftermath of a community catastrophe outweighs the due process rights of individuals or that a governmental entity is entitled to affirmation of its transgressions because to find otherwise will ultimately be at the cost of the public treasury, nor did the issue of the "battered public fisc” merit consideration in the recent decision, DeCorte v.Jordan, 497 F.3d 433 (5th Cir.2007).

      . See, e.g., Fuller, et al. v. Department of Fire, 07-0369, 2007 WL 2966326, 968 So.2d 731 (La. 4 Cir. 9/19/07) (reversing suspension of firefighters who were absent from their posts after the hurricane, failing to return until well after the September 22, 2005, deadline imposed by the New Orleans Fire Department, because application of across-the-board deadline for return was arbitrary and capricious when co-workers had failed to convey cut-off date to them and firefighters "did the best they could under horrific conditions to return to work as quickly as possible”).

      . See CSC Rule IX § 1.2 (amended effective February 1, 1988; emphasis added) ("In every case of termination of employment of a regular employee, the Appointing Authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking action”).

      . In Knight v. Department of Police, 619 So.2d 1116, 1118 (La.App. 4th Cir.), writ denied, 625 So.2d 1058 (La.1993), the court clearly stated that Rule IX is directed to the appointing authorities and "simply cannot be construed as a rule setting forth prohibited conduct by classified employees.” Knight, 619 So.2d at 1120; see also Brumfield v. Department of Fire, 488 So.2d 1181 (La.App. 4th Cir. 1986) (reversing Commission's ruling that the Superintendent of the Fire Department acted within its boundaries of the regulations of the Department of Fire in invoking Rule IX of the Civil Service Commission to dismiss the plaintiff for inability or unwillingness to perform his duties basis for their termination).


source: Caselaw Access Project

author: JOHN D. SAUNDERS, Judge. PICKETT, Judge, GENOVESE, J.,

license: Public Domain

text:
    Honorable Wilford D. CARTER v. H. Lynn JONES, II, Clerk of Court, et al.
    No. CA 07-297.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 2007.

      Rudie Ray Soileau, Jr., Lake Charles, LA, for Plaintiff/Appellant, Honorable Wilford D. Carter.
    David Frank Dwight, Stephen C. Dwight, Dwight Law Firm, Lake Charles, LA, for Defendant/Appellee, H. Lynn Jones, II, Clerk of Court.
    Rick J. Norman, Norman Business Law Center, Lake Charles, LA, for Defendant/Appellee, Division I.
    John B. Scofield, Robert E. Landry, Scofield, Gerard, Singletary & Pohorelsky, Lake Charles, LA, for Defendants/Appel-lees, Honorable R. Richard Bryant, Jr., Honorable David Alexander Ritchie, Honorable Guy Ernest Bradberry, Honorable Robert Lane Wyatt, Honorable David Kent Savoie, Honorable G. Michael Cana-day, Allen J. Mitchell, II, Mitchell & Blan-co, Lake Charles, LA, for Defendant/Ap-pellee, Honorable Alcide Joseph Gray.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   JOHN D. SAUNDERS, Judge.

_J/This is a case challenging the constitutionality of La.R.S. 13:587. The plaintiff, a sitting judge of the Fourteenth Judicial District Court (hereinafter “the District Court”) in Calcasieu Parish, challenged the statute in a suit against the clerk of court and the remaining eight judges of that district. After a trial on the merits, Judge Ad Hoc Anne L. Simon (hereinafter “Judge Simon”) found for the defendants. The plaintiff appealed to this court, charging three assignments of error. For the reasons set forth below, we affirm the trial court’s decision in full.

FACTS:

Pursuant to La.R.S. 13:587, the judges of the District Court in Calcasieu Parish voted unanimously in 1999 to enact Local Rule 23, which designated two of the court’s nine divisions, “C” and “I”, as Family and Juvenile divisions. In January 2006, Judge Wilford D. Carter (hereinafter “Judge Carter”), duly elected judge for Division “F” of the District Court, sought to alter this arrangement by exercising original jurisdiction in his division over a pro rata share of family and juvenile cases filed in the district. To this end, Judge Carter issued on January 10, 2006, an Order directing the Clerk of Court, Mr. H. Lynn Jones (hereinafter “Clerk Jones”), to assign one-ninth of all subsequently filed family and juvenile cases to Division “F”. Seven of the remaining eight judges disagreed with Judge Carter’s Order, and they promptly issued on January 12, 2006, an Order of their own forbidding such case reassignments.

PROCEDURAL HISTORY:

Judge Carter applied to this court for writs of certiorari, asserting that the issuance of the seven judges’ countermanding Order was an invasion of our appellate | ¿court jurisdiction. We denied the writ application on March 3, 2006, on grounds that we lacked supervisory jurisdiction over the matter presented. Contemporaneous to such writ application, Judge Carter brought suit in the District Court on January 12, 2006, initially asserting a mandamus action against Clerk Jones for failing to adhere to Judge Carter’s Order of January 10, 2006. On July 5, 2006, Judge Carter converted his petition to an ordinary proceeding, joined as parties respondent the remaining eight judges of the District Court, and directly challenged the constitutionality of La.R.S. 13:587 and Local Rule 23.

Judge Carter’s claims were considered by Judge Simon at a trial on the merits on December 7, 2006. Judge Simon filed a formal judgment on January 8, 2007, denying all relief sought by Judge Carter’s petition. Judge Carter timely perfected a devolutive appeal of Judge Simon’s judgment, which appeal was filed in the record on January 18, 2007.

ASSIGNMENTS OF ERROR:

1. Did the lower court commit legal error in finding that La.R.S. 13:587 is not an unconstitutional delegation of the legislature’s exclusive authority to establish courts of limited jurisdiction?
2. Did the lower court commit legal error in finding that La.R.S. 13:587 and Local Rule 23 do not unconstitutionally restrict Judge Carter’s exercise of general jurisdiction?
3. Did the lower court commit legal error in finding that La.R.S. 13:587 does not violate the La. Const, art. 3, § 12(A) prohibition against local and special laws?

ASSIGNMENT OF ERROR # 1:

| sJudge Carter argues that the lower court erred in finding that the enactment of La.R.S. 13:587 did not constitute an unconstitutional delegation of the legislature’s exclusive authority to establish courts of limited jurisdiction. Specifically, Judge Carter contends that in imbuing the District Court with the power to assign family and juvenile cases to specified divisions within the court, La.R.S. 13:587 gives the District Court the authority to transform itself, either in whole or in part, from a court of general jurisdiction to one of limited jurisdiction. We disagree.

Louisiana Constitution Article 5, § 16(A) provides that district courts have jurisdiction over all civil matters. As a rule, a district court is considered to have general jurisdiction unless specifically denied it. Tomas v. Conco Food Distributors, 95-348 (La.App. 3 Cir. 10/25/95), 666 So.2d 327. The authority to effect such denial lies solely within the purview of the legislature: “The legislature by law may establish courts of limited jurisdiction with parishwide territorial jurisdiction-” Louisiana Constitution Article 5, § 15(A). Further, as with all powers that fall within the exclusive purview of a particular branch of government, the exercise of such power by another branch is unconstitutional: “[N]o one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” Id. at La. Const, art. 2, § 2. Thus, if La.R.S. 13:587 truly empowers the District Court to create courts of limited jurisdiction by assigning family and juvenile cases to specific divisions within the court, the statute must be an unconstitutional delegation of legislative power to the judicial branch.

By way of counterargument, the appel-lees contend that La.R.S. 13:587 does not represent a constitutionally impermissible delegation of the legislature’s authority to create courts of limited jurisdiction, in that the statute contemplates the creation of |4no courts at all. In support of such contention, the appellees cite Piper v. Olinde Hardware and Supply Co., Inc., 288 So.2d 626 (La.1974). There, the supreme court was asked to interpret the proper application of La.Code Civ.P. art. 2006, which directs that an action to annul a judgment must be brought “in the trial court.” At issue specifically was the question of whether the statutory language pertaining to “the trial court” necessitated that such a suit be brought before the same division of the trial court as that which originally rendered the judgment. In holding that an annulment action may be brought before any division of the district court, the Piper court distinguished, for purposes of statutory interpretation, the relationship between the terms “court” and “division”: “The clear implication from the applicable provisions currently in force is that each judicial district constitutes a single court, and the creation [of] different divisions does not operate to sever a single district court into multiple courts.” Piper, 288 So.2d at 629 (citing Block v. Marks, 16 So. 649 (1895)). Thus, Piper stands for the proposition that the statutory term “court” does not reach each of the internal divisions that make up a district court, but rather embraces the district court as a whole. See also Block, 16 So. at 650 (“The civil district court, composed of five divisions, is still one court”)

Appellees further cite State ex rel. Guste v. Green, 94-1138 (La.App. 1 Cir. 6/23/95), 657 So.2d 610, wherein the first circuit was called upon to settle a constitutional challenge to the Louisiana Supreme Court’s appointment to the Nineteenth Judicial District Court of a judge pro tempore to preside over cases involving insurance matters. There, the appellants argued that the supreme court’s appointment of such an “insurance judge” stripped the district court’s other judges of jurisdiction over insurance matters, thus violating separation of powers doctrine pby creating through extra-legislative means a specialized court of limited jurisdiction within the district court. The Guste court held that the referral of insurance cases arising within a district court to a particular division of that court falls short of the creation of a court of limited jurisdiction: “Nor does the order create a ‘specialized’ court wherein all insurance cases must be heard by Judge Landry ... [T]he use of a system by the Nineteenth Judicial District to distribute civil matters which are before the court does not create a specialized court.” Id. at 622. In so holding, the first circuit brought G’uste directly into line with Piper, affirming the proposition that, as with questions of statutory interpretation, questions of constitutional interpretation are resolved properly by construing the term “court” to mean the district court, rather than its internal divisions.

Applying the wisdom of these cases to the case at bar, this court finds no basis to rule that the lower court erred in holding that La.R.S. 13:587 violated neither of the relevant provisions of the Louisiana Constitution. Here, as in both Piper and Guste, the determinative question is whether the allocation of certain types of civil cases to less than all of the divisions within a district court is sufficient to create a court of “limited” or “specialized” jurisdiction. The lower court saw fit to answer this question in the negative, and in light of relevant case law, this court agrees. In enacting Local Rule 23 pursuant to La. R.S. 13:587, the District Court did not create a court of limited jurisdiction, in that no court was created at all. The District Court was already in place, and it remains in place. Further, as in Gniste, neither does the instant case involve the deprivation of any sitting judge’s authority to hear all civil matters, including family and juvenile cases, under art. 5, § 16 of the Louisiana Constitution. Local Rule 23 merely authorizes the allotment of cases to particular | (¡divisions within the District Court, which does not violate any provision of the Louisiana Constitution. Accordingly, we reject the validity of this assignment of error.

ASSIGNMENT OF ERROR # 2:

Judge Carter next argues that the lower court committed legal error in finding that La.R.S. 13:587 does not restrict unconstitutionally Judge Carter’s exercise of general jurisdiction. More particularly, Judge Carter argues that in failing to provide for the random allotment of family and juvenile pleadings amongst the divisions of the District Court, La.R.S. 13:587 and Local Rule 23 unconstitutionally impede his ability, as a district court judge, to exercise general jurisdiction over matters before the court. We find this argument without merit.

“The Louisiana Legislature, elected by the state’s citizenry, may enact any legislation that the state constitution does not expressly prohibit.” Strata v. Williams, 94-1150, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 522, 525, writs granted and aff'd by, 94-3133, 94-3160 (La.4/28/95), 653 So.2d 549. “The opponents who are challenging the constitutionality of a statute bear the burden of proving clearly that a particular statute is barred by a provision of the state constitution.” In re Am. Waste & Pollution Control Co., 588 So.2d 367, 373 (La.1991) (citing Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Bd. of Dir. of the Louisiana Recovery Dist. v. All Taxpayers, Prop. Owners, and Citizens of the State of Louisiana, 529 So.2d 384, 387 (La.1988); State v. Griffin, 495 So.2d 1306, 1308 (La.1986)). “Specifically, the party must rely upon a constitutional provision which restricts the power of the legislature to enact the particular legislation and must establish that the legislation is barred by such provision.” Strata, 646 So.2d at 525 (citing In re Am. Waste, 588 So.2d at 373; State Bond Comm’n of the State of Louisiana v. All Taxpayers, Prop. Owners, and Citizens of the State of Louisiana, 525 So.2d 521 (La.1988)). “[T]he opponents must clearly and convincingly prove that the Legislature’s action is in contravention of a specific provision of the constitution.” In re Am. Waste, 588 So.2d at 373 (citing Bd. of Dir., 529 So.2d at 388; Ancor v. Belden Concrete Prod., Inc., 260 La. 372, 256 So.2d 122, 125 (1971)).

In the instant case, Judge Carter points to Article 5, § 16 as the constitutional provision of which La.R.S. 13:587 stands in contravention: “[A] district court shall have original jurisdiction of all civil and criminal matters.... ” La. Const, art. 5, § 16(A)(1). Specifically, Judge Carter contends that the constitution’s grant of original jurisdiction to the district courts precludes the legislature from enacting a statute, such as La.R.S. 13:587, which restricts a district court judge’s exercise of that jurisdiction. As discussed above, however, Piper and Guste instruct that the applicability of such a constitutional grant of jurisdiction to a “district court” must stop at the level of the court, as a whole, rather than extending to the smaller segments of that court’s internal structure, including its judges. Further, as Judge Carter discusses extensively in his trial memorandum, the 1973 convention floor debates reveal the overriding intent of the constitutional framers in drafting Article 5 to be entrusting the legislature with paramount authority in exerting control over the future development of the Louisiana judiciary, with specific reference made to | sfamily and juvenile matters. Aecordingly, with respect to Judge Carter’s exercise of original jurisdiction, La. Const, art. 5, § 16 cannot serve as the requisite constitutional provision restricting the power of the legislature to enact La.R.S. 13:587. Not only does Judge Carter not possess, in his capacity as a district court judge, the very constitutional rights he now claims have been violated, but the intent of the framers in drafting Article 5 actually places La.R.S. 13:587 squarely within the purview of the legislature. Whatever the restrictions imposed by La.R.S. 13:587 and Local Rule 23 on Judge Carter’s exercise of jurisdiction, they are not unconstitutional in nature.

Nevertheless, Judge Carter asserts that La.R.S. 13:587 stands in direct conflict with the express statutory requirement for random allotment of filings in district court, as embodied by La. Code Civ.P. art. 253.1: “All pleadings filed shall be randomly assigned to a particular section or division of the court....” Buttressing the plain language of La.Code Civ.P. art. 253.1, Judge Carter further cites State v. Sprint Communications Co., L.P., 96-3094 (La.9/9/97), 699 So.2d 1058, in support of his argument. There, in holding that the Eighteenth Judicial District Court’s system of transferring cases to other divisions of the same court on a non-random basis was improper and violative of La.Code Civ.P. art. 253.1, the supreme court proclaimed:

No single judge sitting in a district court has the right or prerogative to 19try class action suits, maritime cases, medical malpractice claims, or any other particular type of litigation to the exclusion of other judges on the same court to whom the cases are randomly assigned....
... Transfers that circumvent the random allotment process to funnel particular types of cases to one judge are ... inappropriate and impermissible.

Id. at 1063 (footnotes omitted). In effect, Judge Carter contends that La.R.S. 13:587 and Local Rule 23 are similarly inappropriate and impermissible, in that they conflict with La.Code Civ.P. art. 253.1 by allotting the family and juvenile eases filed in the District Court on a non-random basis. We disagree.

Judge Carter places great reliance on the persuasive authority of Sprint, yet the issue presented by that case is actually quite different from the question placed before us today. Whereas Sprint involved a conflict between La.Code Civ.P. art. 253.1 and a non-random allotment policy that was autonomously implemented by a district court, the case at bar concerns a conflict between La.Code Civ.P. art. 253.1 and a non-random allotment procedure authorized by legislative statute, La.R.S. 13:587. “Where a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. “Laws on the same subject matter must be interpreted in reference to each other.” La.Civ.Code art. 13. “Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions.” Bunch v. Town of St. Francisville, 110446 So.2d 1357, 1360 (La.App. 1 Cir.1984). “In instances of a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Horil v. Scheinhorn, 95-967, p. 3 (La.11/27/95), 663 So.2d 697, 699.

Here, the statute in question clearly and unambiguously sanctions the non-random allotment of juvenile and family pleadings to certain divisions within the District Court:

The judges of the Fourteenth District Court may by rule adopted by a majority vote of the judges sitting en banc, designate and assign to one or more divisions of the court any or all types of juvenile matters of which the court has jurisdiction and any or all types of domestic relations matters of which the court has jurisdiction.

La.R.S. 13:587(A). At the same time, it is equally clear that La.Code Civ.P. art. 253.1 calls for all pleadings to be allotted randomly. In such cases, our jurisprudence directs us to attempt, wherever possible, to harmonize and reconcile the statute at issue with other statutes that speak to the same subject matter, with the added directive in cases of conflict to construe the more specific of the two statutes as an exception to its more general counterpart. In the instant case, La.R.S. 13:587 is the more specific of the two statutes. Whereas La.Code Civ.P. art. 253.1 speaks generally of “all pleadings” filed in “the court,” La.R.S. 13:587 applies specifically to “juvenile ... [and] domestic relations matters” brought before “the Fourteenth Judicial District Court.” Thus, in accordance with general rules of statutory interpretation, this court holds that La.R.S. 13:587’s nonrandom allotment procedures for family and juvenile pleadings before the Fourteenth Judicial District Court must prevail as an exception to the prohibitions against non-random allotment contained in | nLa.Code Civ.P. art. 253.1, as the former is the more specific of two statutes that touch upon the same subject matter. Accordingly, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR # 3:

Finally, Judge Carter asserts that the lower court committed legal error in finding that La.R.S. 13:587 does not violate the art. 3, § 12(A) prohibition against local and special laws. In particular, Judge Carter argues that La.R.S. 13:587 is a special law. We find this assertion without merit.

Louisiana Constitution Article 3, § 12(A) provides: “Except as otherwise provided in this constitution, the legislature shall not pass a local or special law: ... [concerning any civil or criminal actions, including ... regulating the practice or jurisdiction of any court.” “[A] statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons.” Teachers’ Ret. Sys. of Louisiana v. Vial, 317 So.2d 179, 183 (La.1975). The supreme court delved further into the rationale behind the constitutional prohibition in Polk v. Edwards, 626 So.2d 1128, 1135 (La.1993) (citations omitted):

This Court has long recognized that the constitutional prohibition on designated types of local or special laws was not intended to restrict the use of legislative power to further the state’s interest. Rather, the prohibition was intended to prevent abuse of legislative power on behalf of special interests and to prohibit the exemption of an individual or private corporation from the operation of a general law.

Viewing the facts of the case at bar through the lens of constitutional and jurisprudential authority, this court finds no justification for invalidating La.R.S. 11213:587 as a special law. Judge Carter contends that the “class” affected unequally by the statute is that comprised of the judicial districts of the state, yet La.R.S. 13:587 does not speak to the judicial districts of the state as a whole, but instead constrains its scope to the Fourteenth Ju-clidal District Court. As such, the circumstances of the instant case reflect those of State v. Dalon, 35 La.Ann. 1141 (1883), the relevance of which has not been diminished in its more than a century of existence. There, in upholding the validity of a statute organizing the criminal district court for Orleans Parish, the supreme court held: “The argument that a law which relates solely to the machinery of a court of justice having jurisdiction over the territory of one parish only, is a local or special law, because it does not operate throughout the State and all the parishes thereof, is perfectly preposterous....” Id. at 1142. The only classification implicated by La. R.S. 13:587 is that of the judges of the District Court, and the statute affects the members of that class equally: “The judges of the Fourteenth Judicial District Court may....” Further, in attempting to square our application of La. Const, art. 3, § 12(A) with the intent of that provision, this court finds the instant case devoid of any “private corporation” or “special interest” that stands to gain an advantage from the enactment of La.R.S. 13:587. On the contrary, the Fourteenth Judicial District Court, as a subdivision of the state’s judicial branch, is a public entity, and its efficient administration of juvenile and family matters stands as an interest of decidedly general applicability. Thus, this court finds this assignment of error to be without merit.

Notably, although Judge Carter does not press the issue now, in constraining the scope of La.R.S. 13:587 to a single judicial district, neither has the legislature enacted a constitutionally impermissible local law: “[A] law whose application and 118immediate effect is restricted to a particular locality is not considered local where persons throughout the state are affected by it or it operates on a subject in which the people at large are interested.” Kim-ball v. Allstate Ins. Co., 97-2885, 97-2956, p. 4 (La.4/14/98), 712 So.2d 46, 51. As Judge Carter concedes in his original brief, La.R.S. 13:587 is not local law, in that it applies equally to all persons who are litigants or parties to a proceeding before the Fourteenth Judicial District Court. Thus, there is no basis under La. Const, art. 3, § 12(A) to invalidate La.R.S. 13:587 as unconstitutional.

CONCLUSION:

For the reasons set forth above, the judgment of the lower court is affirmed. All costs to be taxed to the appellant.

AFFIRMED.

PICKETT, J., concurs in the judgment and assigns reasons.

GENOVESE, J., dissents and assigns written reasons.

PICKETT, Judge,

concurring in the judgment.

Li agree with the ultimate conclusion reached by Judge Saunders that Judge Carter’s suit lacks merit. However, I would find that Judge Carter lacks standing to raise the issue of the effect La.R.S. 13:587 has on random allotment as required by La.Code Civ.P. art. 253.1, thus I would recognize, ma sponte, an exception of no right of action. See La.Code Civ.P. art. 927(B). Therefore, I must concur in the judgment.

As discussed in the opinion, the court, rather than an individual judge of the court, exercises the jurisdiction conferred by the state constitution. See Piper, 288 So.2d 626, and Guste, 657 So.2d 610. I agree with the opinion, then, that La.R.S. 13:587 does not unconstitutionally infringe on Judge Carter’s rights, as he lacks those rights in the first instance. For the same reason, I would find that Judge Carter cannot assert a claim that La.R.S. 13:587 and Local Rule 23 improperly infringes on the random allotment procedures required by La.Code Civ.P. art. 253.1. I would, therefore, reserve judgment on the issue of whether La.R.S. 13:587 contains a valid exception to the prohibition against nonrandom allotment contained in La.Code |¿Civ.P. art. 253.1 until it is properly presented to this court by a party with a valid right of action.

In all other respects, I join the opinion of Judge Saunders.

GENOVESE, J.,

dissents and assigns the following reasons.

| ]The majority affirms the trial court in upholding the constitutionality of La.R.S. 13:587. I disagree. The establishment of divisions (such as Divisions C and I) within the Fourteenth Judicial District Court to hear juvenile and domestic relations matters is a permissive delegation of legislative authority pursuant to La. Const, art. 5, § 15(A). However, a serious constitutional question is presented when a majority of the judges, not the people who elect the judges to these specified divisions, decides which judges are to hear these cases. When a majority of the judges make such a designation, that is an exercise of judicial authority. Yet, our state constitution only grants that authority to the legislature. Technically, these specified divisions could be changed at will, pursuant to court rule, at the whim of a majority of the judges at any judges’ meeting of the Fourteenth Judicial District Court. Not only Judge Carter, but each and every judge of the Fourteenth Judicial District Court, and the people whose cases are in those respective courts, are affected by a simple majority vote of the judges of the Fourteenth Judicial District Court pursuant to court rule enacted at any duly called judges’ meeting. It is the people who have a constitutional right to elect those persons they deem fit and proper to these special divisions of court to hear their respective cases, not the then existing majority of the judges of the Fourteenth |2JudiciaI District Court pursuant to court rule at any judges’ meeting.

For these reasons, I find that La.R.S. 13:587 is an unconstitutional grant and delegation of legislative authority to the judiciary in violation of the separation of powers doctrine set forth in our state constitution as interpreted by our supreme court. I respectfully dissent from the majority and would reverse the trial court judgment in this case.

      . Senator Samuel Nunez, Jr. proposed, on August 17, 1973, an amendment to the Judiciary Committee’s constitutional draft Section 15(A), in which he sought to add a local referendum requirement to the existing language of the draft, which gave the legislature the exclusive power to abolish or merge courts of limited or specialized jurisdiction. In voting down the Nunez amendment by a count of 40 votes to 66, several drafters expressed their intent to imbue the legislature with overarching control over matters of jurisdiction, particularly at the sub-district court level. Of some note were comments made by several delegates to the constitutional convention. Delegate Burson argued against the amendment: "[I]f you do adopt this amendment, you will be taking away from the legislature a significant power which it has not at the present time and ought to have to run the business of the state.” 32nd Day Proceedings — Aug. 17, 1973, p. 777. Similarly, Delegate Abraham stated in opposition to the Nunez Amendment: “If we're ever going to get some order to this court system, we’re going to have to give the legislature the authority and flexibility to set the thing up as it should be.... Id. at 780. Delegate Stoval echoed these sentiments, as well: “It seems to me that there is something very basic and fundamental here that we need to consider. It is the question of whether or not we are going to trust the wisdom and integrity of the legislature of our state.” Id.

        . Constitutional draft Section 18, as amended on August 28, 1973, reads: "The juvenile and family courts shall have such jurisdiction as the legislature shall provide by law.” 37th Day Proceedings — Aug. 28, 1973, p. 983.


author: DICKINSON, Justice,

text:
    Thong LE v. STATE of Mississippi.
    No. 2005-DR-00523-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2007.
    Rehearing Denied Nov. 1, 2007.

      Mississippi Office of Capital Post Conviction Counsel by Robert M. Ryan, Louwlynn Vanzetta Williams, attorneys for appellant.
    Office of the Attorney General by Pat McNamara, Marvin L. White, Jr., attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Thong Le and Ngan Tran were indicted for capital murder in the beating and strangulation deaths of Minh Heiu Thi Huynh and her two daughters, Thuy, age eleven, and Than, age fifteen. Ngan Tran, who was believed to have committed the actual killings, took his own life while in custody. Le went to trial and was sentenced to death by lethal injection.

FACTS AND PROCEDURAL HISTORY

¶ 2. At Le’s trial the State presented evidence which showed that the pair had gone to Huynh’s home for the purpose of robbing her. The two were admitted into the apartment by the children, who were home alone. When Huynh returned, she and the children were bound, savagely beaten and strangled to death. Le and Tran spent hours attempting to sanitize the scene with water and bleach. The two left with $1,300 cash and a book bag containing some household items. Following them arrest, Tran hanged himself in his cell. Le went to trial where he was convicted of capital murder committed during the course of a robbery. He was sentenced to death by lethal injection. On direct appeal, Le’s conviction and sentence were affirmed by this Court. Le v. State, 913 So.2d 913 (Miss.2005). Le now files a motion for post-conviction relief arguing ten issues, which are each discussed below.

ANALYSIS

I. Ineffective Assistance of Counsel.

¶ 3. Ineffective assistance of counsel was raised as an issue on direct appeal (Le, 913 So.2d at 950-55) and should be procedurally barred from consideration on collateral appeal. Miss.Code Ann. § 99-39-21(Rev.2000). Le now raises other instances of alleged ineffective assistance and argues that trial counsel rendered ineffective assistance in failing to pursue a change of venue, failing to strike a particular juror, and in failing to retain an expert in the field of false confessions. Despite the procedural bar, this discussion follows:

The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 4. One who claims ineffective assistance of counsel must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 5. Defense counsel is presumed competent. Washington v. State, 620 So.2d 966 (Miss.1993). But even where professional error is shown, the reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). In death penalty appeals, the most important inquiry is “whether there is a reasonable probability that, absent the errors, the sentence!- — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052.

¶ 6. Le first claims that trial counsel erred in failing to seek a change of venue because of extensive pre-trial publicity in local'newspapers. The fact that at least two jurors had simply “heard a little bit on the news” seems woefully inadequate when claiming that the jury venire was not impartial. A review of the transcript of the voir dire process indicates that most of the venire was largely unaware of this particular case and those members who were unaware of it assured counsel and the trial court that they could be impartial. This Court has held that defense counsel is under no duty to attempt to transfer venue; therefore, the decision not to seek a change of venue falls within the realm of trial strategy. Bishop v. State, 882 So.2d 135, 142 (Miss.2004). This assertion is without merit.

¶ 7. Le next claims that trial counsel’s performance was deficient in failing to strike juror number eleven from the panel. When asked about prior knowledge of the case, this particular juror volunteered that shortly after being summoned for jury duty, the name “T. Le” had appeared on her telephone’s caller ID and that she reported the matter to the District Attorney’s office. The trial court and counsel examined this juror at the bench and discovered that she knew little else of the case other than that it had occurred. The juror assured the trial court that the incident would not influence her decision making if she were selected to serve on the jury. This assertion is without merit.

¶8. Finally, Le argues that his confession was “inaccurate, misleading, false in material particulars, and totally unreliable” such that trial counsel must be faulted for failing to retain an expert in the field of false confessions. Petitioner further characterizes this omission as a failure to investigate. Although couched as a claim of ineffective assistance of counsel, this Coui’t thoroughly considered the matter on direct appeal as part of Le’s challenge regarding his pretrial motion to suppress the confession. Le, 913 So.2d at 930-34.

¶ 9. There was testimony at the suppression hearing that Le had been given his Miranda warnings on two separate occasions and that Le was a nineteen-year-old born in this country whose native language was English. This Court considered the entire record (including the hearing on the pre-trial motion to suppress) and still found no error in the trial court’s decision to admit the statement. Id. at 934. Petitioner makes no convincing showing that he was incompetent to give the statement or that he was psychologically coerced to confess.

¶ 10. Instead, much of petitioner’s argument on this issue goes to whether Le was the type of individual to have taken an active role in the commission of the killings. Petitioner submits the affidavit of a clinical psychologist who opines that Le is not by nature a violent person. Le’s legal culpability as an accomplice is not reduced by this sort of argument. His willing participation in the successive killings of three defenseless people makes him every bit as responsible as the ring leader. It therefore cannot be said that the testimony of an expert would have changed the outcome at trial. This assertion is without merit.

II. Weight of the Evidence as to Intent and a Disproportionate Sentence.

¶ 11. Le next argues that, given his minimal role in the crime, the jury’s finding concerning his intent to kill was not supported by the evidence, and the death sentence was disproportionate. This issue was thoroughly considered on direct appeal and found to be without merit. Le, 913 So.2d at 943-47. Specifically, this Court held that the jury had found more than just contemplation by Le that lethal force would be employed with regard to all three murders. Id. at 945. The Court found that “Le’s argument that he was guilty of nothing more than contemplation of lethal force is without merit.” Id. In doing so, this Court noted Le’s admission that he knew Tran had a gun and that he assisted Tran in binding the victims and even choked Huynh and helped to sanitize the crime scene. Id. at 946. The Court further held that imposition of the death penalty under these circumstances was not disproportionate to those death sentences imposed in other cases. Id. at 947. The issue was found to be wholly without merit and reconsideration on collateral appeal is procedurally barred by statute. Miss. Code Ann. § 99-39-21(2) and (3)(Rev.2000).

III. Failure to Suppress Confession as Fundamental Reversible Error.

¶ 12. This is the same argument put forth as an alleged instance of ineffective assistance of counsel. Le now argues that he was psychologically incompetent to give a reliable statement to law enforcement authorities and that this condition was not known at the time of trial. This issue is essentially a restatement of the ineffective assistance claim presented earlier under the guise of failure to retain a false confession expert. As mentioned previously, the admissibility of the statement was discussed thoroughly on direct appeal. Le, 913 So.2d at 930-34. Reconsideration on collateral appeal is now procedurally barred pursuant to Miss.Code' Ann. § 99-39-21(2) and (3)(Rev.2000).

IY. Inadmissible Statement of Deceased Co-defendant.

¶ 13. This issue was considered in great detail on direct appeal and found to be without merit. Le, 913 So.2d at 940-43. Le argued that Tran’s custodial statement to police was inadmissible hearsay because Tran was no longer available for cross-examination. Le further argued that the statement fell within no exception to the hearsay rule. This Court found no constitutional violation because the statement was offered only in rebuttal and was not used against Le in the State’s case-in-chief. Id. at 942.

¶ 14. Le called witnesses in his defense to testify concerning Tran’s statements and thereby opened the proverbial door to rebuttal testimony. Tran’s statement was not introduced for the primary purpose of proving Le’s guilt and was therefore not constitutionally impermissible. Having been considered on direct appeal, the issue is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(3)(Rev.2000).

Y. Use of Religious Beliefs to Coerce a Confession.

¶ 15. This issue was thoroughly considered by this Court on direct appeal and found to be without merit. Le, 913 So.2d at 930-34. The issue centered on a discussion between Le and Sergeant Joseph Nicholson, who asked Le if he believed that three souls had been taken that night. Le, however, continued to maintain his innocence. Id. at 931. This Court noted that Le had already confessed to his participation in the robbery and that the killings had taken place during the course of the robbery. Id. at 933. Having been considered on direct appeal, the matter is now procedurally barred from collateral review pursuant to Mississippi Code Annotated Section 99-39-21(3)(Rev.2000).

VI. Use of Peremptory Challenges Against African-American Veniremen.

¶ 16. This issue also was thoroughly discussed on direct appeal and found to be without merit. Le, 913 So.2d at 925-930. Specifically, the Court held, “we are unable to find the trial court erred in accepting the race-neutral reasons offered by the State for the strikes of the seven African-American jurors.” Id. at 930. Having been considered on direct appeal, this issue is now procedurally barred from collateral review pursuant to Mississippi Code Annotated Section 99-39-21(3)(Rev.2000).

VII. Failure to Charge Aggravating Circumstances in the Indictment.

¶ 17. Le argues that his death sentence must be vacated because the aggravating circumstances which invoked the death penalty were not charged in the indictment. This issue could have been raised on direct appeal and is now procedurally barred from consideration. Miss. Code Ann. § 99-39-21(Rev.2000). Despite the procedural bar, the Court notes the following.

¶ 18. Counsel for Le cites (as is done in almost every capital PCR) the rulings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) in which that Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were aggravating circumstances present to warrant imposition of enhanced punishment.

¶ 19. Apprendi was charged with firing shots into the home of an African-American family in New Jersey. He pled guilty to possession of a firearm for unlawful purposes and, after the judge accepted the guilty plea, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The U.S. Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶ 20. In 2002, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 Ring addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) with a jury deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision. The Supreme Court decided it could not. Id.

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609, 122 S.Ct. 2428. The Court specifically noted, “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597, n. 4, 122 S.Ct. 2428. Ring did not contend that his indictment was constitutionally defective as does Le.

¶ 21. As a practical matter, Rule 7.06 of the Uniform Circuit and County Court Rules provides that an indictment shall be “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution. An indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (relying on Williams v. State, 445 So.2d 798 (Miss.1984)).

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant’s contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Williams, 445 So.2d at 804-05. This Court has consistently found this issue (failure to charge the aggravating factors in the indictment) to be without merit. Havard v. State, 928 So.2d 771(Miss.2006); Berry v. State, 882 So.2d 157, 172 (Miss.2004). As raised by Le, the issue continues to be without merit.

VIII. Lethal Injection Violates the Eighth Amendment.

¶ 22. This issue was capable of being raised on direct appeal and is procedurally barred from further consideration on collateral appeal. Miss.Code Ann. § 99-39-21(1)(Rev.2000). In Jordan v. State, the petitioner failed to raise lethal injection as an Eighth Amendment claim and this Court employed the procedural bar.

Jordan failed to make any claim relating to the method of execution at trial or on direct appeal. Therefore, this claim is barred for consideration for the first time on application for leave to seek post-conviction relief. See Miss.Code Ann. § 99-39-21(1); Bishop v. State, 882 So.2d 135, 149 (Miss.2004); Grayson v. State, 879 So.2d 1008, 1020 (Miss.2004).

918 So.2d 636, 661. Despite the procedural bar, this Court looked to merits of the claim and found none based on Jordan’s failure to submit any sworn proof as required by Mississippi Code Annotated Section 99-39-9(1)(e)(Rev.2000). Id. at 662. Likewise, counsel for Le fails to submit any affidavit which legitimately questions the lethal injection protocol employed by the Mississippi Department of Corrections. This issue is without merit.

IX. Cumulative Error.

¶23. Le argues generally that the alleged preceding errors, taken as a whole, deprived him of a fair trial. The standard of review for an appeal from a capital murder conviction and death sentence is that it must be subjected to “heightened scrutiny.” Balfour v. State, 598 So.2d 731, 739 (Miss.1992) (citing Smith v. State, 499 So.2d 750, 756 (Miss.1986); West v. State, 485 So.2d 681, 685 (Miss.1985)). All doubts are to be resolved in favor of the accused because “what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.” Id. (quoting Irving v. State, 361 So.2d 1360, 1363 (Miss.1978)). See also Fisher v. State, 481 So.2d 203, 211 (Miss.1985).

¶ 24. With regard to the issue of alleged cumulative error, the Court previously has taken note of those capital cases in which the opinions of this Court articulated differing analyses. For example, in McFee v. State, 511 So.2d 130, 136 (Miss.1987) (rape conviction and life sentence affirmed), this Court individually addressed each assignment of error and found none (harmless or otherwise) by the trial court. Based on that finding, the Court stated:

In sum, McFee contends that the cumulative effect of the alleged errors was sufficient to prejudice the jury, essentially allowing the State to convict him not of rape, but of murder. Yet, as discussed, neither the introduction of the photographs nor the prosecutor’s comments constituted reversible error. As there was no reversible error in any part, so there is no reversible error to the whole.

Id. However, in Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992) (capital murder conviction and death sentence reversed and remanded), in which this Court found both harmless error and reversible error by the trial court, the Court stated:

If reversal were not mandated by the State’s discovery violations, we would reverse this matter based upon the accumulated errors of the prosecution. This Court has often ruled that errors in the lower court that do not require reversal standing alone may nonetheless taken cumulatively require reversal.

Id. (citing Griffin v. State, 557 So.2d 542, 552-53 (Miss.1990)). In Manning v. State, 726 So.2d 1152, 1198 (Miss.1998), overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss.1999) (capital murder convictions and death sentence affirmed), after addressing twenty-one assignments of error with sub-parts, and after making numerous findings of no “reversible error,” the Court stated:

This Court has held that individual errors, not reversible in themselves, may combine with other errors to make up reversible error. Hansen v. State, 592 So.2d 114, 142 (Miss.1991); Griffin v. State, 557 So.2d 542, 553 (Miss.1990). The question under these and other cases is whether the cumulative effect of all errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial. Where there is “no reversible error in any part, ... there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987).

Manning, 726 So.2d at 1198.

¶ 25. To reconcile these different views, the Byrom court held:

What we wish to clarify here today is that upon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect. That having been said, for the reasons herein stated, we find that errors as may appear in the record before us in today’s case, are individually harmless beyond a reasonable doubt, and when taken cumulatively, the effect of all errors committed during the trial did not deprive Michelle Byrom of a fundamentally fair and impartial trial. We thus affirm Byrom’s conviction and sentence.

Byrom, 863 So.2d at 846-47. In the present case, the record supports no finding of error, harmless or otherwise, upon the part of the trial court or on the part of trial counsel. Consequently, there can be no prejudicial cumulative effect and no adverse impact upon Le’s constitutional right to fair trial.

X. Double Prejudice Through Consideration of the Armed Robbery Charge as well as Reference to Pecuniary Gain.

¶ 26. The same issue was presented to this Court in Brawner v. State and found to be without merit. Brawner, 947 So.2d 254 (Miss.2006). The Court there held:

We have consistently upheld the use of the underlying felony as an aggravating factor during sentencing. Goodin v. State, 787 So.2d 639, 654 (Miss.2001) (citing Walker v. State, 671 So.2d 581, 612 (Miss.1995)). The argument is the familiar “stacking” argument. It contends that it is unconstitutional for the State to elevate murder to capital murder and then, using the same factor, elevate the sentence to death. As pointed out in Lockett v. State, 517 So.2d 1317, 1337 (Miss.1987), this Court has consistently rejected this argument. Goodin, 787 So.2d at 654; Davis v. State, 684 So.2d 643, 664 (Miss.1996). However, this Court has found impermissible doubling where the trial court in a sentencing proceeding submits as separate aggravating factors both the fact that the capital murder was committed during the commission of a robbery and for pecuniary gain. Goodin, 787 So.2d at 654. In that case the two aggravating factors essentially comprise one circumstance. Id. (citing Willie v. State, 585 So.2d 660 (Miss.1991)).
The Florida cases cited by Brawner do not stand for the proposition he asserts. Rather, they stand for the proposition that the use of two aggravating factors which essentially comprise one circumstance results in impermissible doubling. Barnhill, 834 So.2d at 851; Griffin, 820 So.2d at 914-15; Robertson, 611 So.2d at 1233. This is identical to our law as announced in Goodin and Willie. Therefore, this assertion is without merit.

Brawner, 947 So.2d at 265. The same argument is put forth by Le and must fail for the same reasons. The issue is without merit.

¶ 27. LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

WALLER, P.J., EASLEY, CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ., CONCUR. SMITH, C.J., AND DIAZ, P. J., NOT PARTICIPATING.