author: McDonald, J. WHIPPLE, J.,

text:
    LOUISIANA DEPARTMENT OF INSURANCE through James J. DONELON, Commissioner of Insurance v. Steve J. THERIOT, Louisiana Legislative Auditor for the State of Louisiana, the Louisiana Legislature through the Legislative Audit Advisory Council, Honorable John N. Kennedy, Treasurer of the State of Louisiana and Honorable Angele Davis, Commissioner of Administration for the State of Louisiana.
    No. 2010 CA 0069.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2011.

      David S. Rubin, Warren Byrd, Barry E. Ward, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana Department of Insurance through James J. Donelon, Commissioner of Insurance.
    E. Wade Shows, Jacqueline B. Wilson, Jenifer Schaye, Baton Rouge, LA, John Weeks, II, T. Allen Usry, New Orleans, LA, for Defendant/Appellee, Steve J. Theriot, CPA, Louisiana Legislative Auditor.
    Alfred W. Speer, Mary F. Quaid, Glenn A. Koepp, Jerry J. Guillot, Baton Rouge, LA, for Defendant/Appellee, Louisiana Legislature, acting through the Legislative Audit Advisory Council.
    Paul A. Holmes, Baton Rouge, LA, for Defendant/Appellee, Angele Davis, Commissioner of Administration for the State of Louisiana.
    James H. Napper, Baton Rouge, LA, for Defendant/Appellee, John N. Kennedy, Treasurer of the State of Louisiana.
    Urna M. Subramanian, Benjamin A. Huxen, II, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana.
    Before WHIPPLE, PARRO, McDonald, McCLENDON, and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore, and ad hoc by special appointment of the Louisiana Supreme Court.

   McDonald, J.

|sThe Louisiana Department of Insurance, through the Commissioner of Insurance, appeals a judgment of the trial court, which maintained various exceptions and dismissed with prejudice the Department of Insurance’s petition. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In October 2007, the Louisiana Legislative Auditor (Auditor) commenced an audit of Louisiana Citizens Property Insurance Corporation, the Property Insurance Association of Louisiana, and the Louisiana Automobile Insurance Plan, insurance companies managed by the Louisiana Department of Insurance (hereinafter referred to as the Department). The audit was subsequently expanded, and the Auditor commenced an audit of the Department for the fiscal year 2006-2007. On October 18, 2007, the Auditor requested that the Department produce all emails from October 1, 2003, through the current date. The Department agreed to produce all documents they deemed necessary for financial and compliance audit purposes, but claimed that it was prohibited from providing access to documents protected by privileges, particularly the attorney-client and deliberative process privileges.

Failing to receive all the information it had requested, the Auditor and the Louisiana Audit Advisory Council issued a subpoena to the Commissioner of Insurance on November 7, 2007, requesting:

1. All Department of Insurance email beginning October 1, 2003 to date; and

2. A copy of all Department of Insurance backup tapes beginning October 1, 2003 to date.

| thereafter, on November 15, 2007, the Department filed suit against the Auditor, seeking a determination that the privileges it had asserted were superior to any of the Auditor’s statutory rights of access to data.

This suit was dismissed after the parties entered into a Confidentiality Agreement in March 2008, which was intended to provide the protections that concerned the Department and would grant to the Auditor the information needed to complete the audit. The chairman of the Legislative Audit Advisory Council submitted a motion to the Council to rescind the subpoena issued to the Department, advising that it was “the opinion of the Legislative Auditor that the Confidentiality Agreement has resolved the problems regarding the Auditor’s access to records maintained by the LDOI for the completion of its audits.” The motion also noted that the Auditor believed that the issues that were the basis for the Department’s lawsuit had been resolved by the agreement.

However, in spite of the agreement, on June 20, 2008, the Auditor delivered a draft of his audit to the Department in which he claimed he was unable to complete the audit unless provided with all the information requested in the subpoena. The Auditor terminated the Confidentiality Agreement in September, because he had not received the requested records, which the Department believed it was not legally required to submit.

On September 23, 2008, the Auditor sent a letter to the Attorney General, advising that the Auditor had attempted to review records of the Department necessary to perform both financial and compliance audits, and “To date, we have not received all of the records requested.” Pursuant to LSA-R.S. 24:513 H, the Auditor requested assistance in securing these | ¿records. The letter asked that “you take whatever action you deem necessary to enforce state law,” referencing several statutes, namely LSA-R.S. 24:513 J, LSA-R.S. 24:518 A(1)(c), LSA-R.S. 24:518 A(2), LSA-R.S. 14:134, LSA-R.S. 44:37. In concluding, the letter stated, “Please advise us whether or not you anticipate any action on this matter. If not, I must bring the issue before the Legislative Audit Advisory Council at its next meeting.”

On November 12, 2008, the Auditor issued his audit, in which he asserted that he was unable to issue an opinion, “because the legislative auditor was not able to obtain complete, unfettered access to audit evidence and because [he was] unable to apply other auditing procedures to ensure completeness of the DOI records affecting the audit.” The Auditor further stated that the Department “is in noneom-pliance with state audit law” for failing to produce all the Section 513 Data.

The Department filed a petition for preliminary injunction, permanent injunction, and declaratory judgment, which, after adjudication by the trial court, is the subject of the appeal before us. The suit asserted numerous claims, most notably for purposes of this appeal, a request for a declaratory judgment affirming that the Auditor’s ability to have access to and be permitted to examine and copy Section 513 Data is subject to the protections, safeguards, privileges, and guaranties accorded by the attorney-client privilege and the deliberative process privilege. The Auditor and legislature, through the Legislative Audit Advisory Council, filed several exceptions, including a declinatory exception of lack of subject matter | ¿jurisdiction and/or mootness, peremptory exceptions of no cause of action and no right of action, and dilatory exception of vagueness.

The trial court granted the exceptions raising the objections of lack of subject matter jurisdiction and/or mootness, no right of action, and no cause of action, and all claims of the Department were dismissed. The exception raising the objection of vagueness was found to be moot. A judgment to this effect was signed by the trial judge on August 7, 2009. The Department has appealed the portion of the judgment granting the peremptory exception raising the objection of no cause of action, and cites two assignments of error:

1. The trial court erred in its ruling that an entity subject to audit by the Louisiana Legislative Auditor has no cause of action to assert that the type of data enumerated in La-R.S. 24:513(A)(l)(a) does not include documents protected by the attorney-client privilege.
2. The trial court erred in its ruling that an entity subject to audit by the Louisiana Legislative Auditor has no cause of action to assert that the type of data enumerated in La-R.S. 24:513(A)(1)(a) does not include documents protected by the deliberative process privilege.

DISCUSSION

Initially, we address the arguments of the Auditor and the Legislative Audit Advisory Council that the issues presented in the Department’s assignments of error are moot, because the final audit has been issued and the Auditor is no longer seeking the data that the Department contends is protected by privilege. As noted by the Department, the correctness of the disclaimer in the final audit, Le., that the Auditor could not render an opinion on the financial statements of the Department, because he did not have complete access to all documents requested, remains at issue herein. If, in fact, a determination were made that the Auditor was not entitled to access privileged data in conducting financial and compliance audits,_[^then the underlying basis for his refusal to render an opinion in the final audit could be erroneous. Moreover, in determining whether an issue is moot, a court should consider whether there is any reasonable expectation that the complained-of conduct will recur. Louisiana State Board of Nursing v. Gautreaux, 2009-1758 (La.App. 1st Cir.6/11/10), 39 So.3d 806, 812; writ denied, 2010-1957 (La. 11/5/10), 50 So.3d 806. Clearly, this is an issue that will continue to arise between the Auditor and the agencies of the state, given the scope of the Auditor’s duties and obligations.

The Auditor has a daunting function to perform, because the legislature relies on the Auditor’s office in large part in ensuring the financial solvency of the State. It is necessary and essential that each audi-tee cooperate with the Auditor in order for these duties to be lawfully completed. Several provisions in the Louisiana Revised Statutes Title 24, Chapter 8, entitled, “Legislative Auditor; Legislative Audit Advisory Council,” provide for the duties of auditees and the penalties for failure to perform them. Louisiana Revised Statutes 24:513 H was noted previously. Louisiana Revised Statutes 24:513 K provides: “Whoever violates the provisions of this Section shall be fined not more than one thousand dollars and shall be deemed guilty of malfeasance and gross misconduct in office, and shall be subject to removal.” Malfeasance and removal from office are very stringent penalties. Clearly, this indicates that the legislature intended for auditees to cooperate "with the Auditor.

In addition to the provisions in Title 24 addressing duties of auditees, in 2008 the legislature amended portions of Title 39, dedicated to public finance, and enacted LSA-R.S. 39:72.1 to provide, in part:

ls(A) Notwithstanding any contrary provision of law, no funds appropriated in the general appropriations act, the capital outlay act, or other appropriation act, shall be released or provided to any recipient of an appropriation if, when, and for as long as, the recipient fails or refuses to comply with the provisions of R.S. 24:513.

Because of the strict penalties for failure “to comply with the provisions of R.S. 24:513,” or otherwise cooperate with the legislative auditor, the Department seeks judicial interpretation of this statute. The Department has indicated that it has concerns regarding the constitutionality of the statute. We recognized in Kyle v. Louisiana Public Service Commission, 2003-0584 (La.App. 1st Cir.4/2/04), 878 So.2d 650, 657, that separation of powers issues are implicated in judicial interpretation of the statutes in Title 24 dealing with the Auditor. We decline to address any constitutional issues here. We note that it is preferable to render judgments, when possible, by interpretation of a statute without reaching issues of constitutionality, because statutes are presumed to be constitutional. See Southern Silica of La. v. La. Ins. Guaranty Assoc., 2007-1680 (La.4/8/08), 979 So.2d 460, 466-67. The Department may seek judicial interpretation of LSA-R.S. 39:72.1 through another suit for injunctive relief, in the event an action is taken that affects its funding.

An examination of Title 24 is sufficient to resolve the issue in this case. Originally a subpoena was issued for access to the documents that the Auditor claimed were necessary. Pursuant to LSA-R.S. 24:513 M(l), the Auditor and the chairman of the Legislative Audit Advisory Council may jointly issue a subpoena for the production of documents it deems necessary to perform its duties. This procedure was initially followed when a subpoena was issued on November 7, 2007. If the subpoenaed information is not forthcoming, then the statute provides that a district court, upon joint application by the Auditor and the chairman of the Legislative Audit Advisory Council, should address |9the matter. LSA-R.S. 24:513 M(2). In this case, however, as noted, the Auditor and the Department reached an agreement regarding the production of documents, and the subpoena was recalled. When the Auditor later did not receive data that it thought it needed to complete its audit, instead of following the procedure statutorily established to address this situation, the Auditor took the action outlined above.

When the statute is followed, an auditee will be required to have the issue decided by the district court. Courts routinely decide matters over which parties disagree. It is problematic for one of the parties, unilaterally, to decide the issue, especially considering the enormity of the consequences of a finding of failure to comply with the provisions of LSA-R.S. 24:513. The nature of the procedure and the importance of the Auditor receiving the data necessary to complete an audit timely must influence the court to give the matter an expeditious hearing.

The Department maintains that privileged documents are not data subject to LSA-R.S. 24:513. The Auditor’s interpretation of LSA-R.S. 24:513 allows it “complete and unfettered access to audit evidence,” including privileged documents. We agree that the Auditor must have “unfettered access to audit evidence.” What’s at issue here, however, is what constitutes “audit evidence.” As stated in the Government Accounting Standards, “The principles of transparency and accountability for the use of public resources are key to our nation’s governing processes. Government officials and recipients of federal moneys are responsible for carrying out public functions efficiently, economically, effectively, ethically, and equitably, while achieving desired program objectives.” Government Accounting Standards, July 2007 revision, page 1. The data necessary to conduct a proper audit depends on the 1 mnature of the audit; and the Government Accounting Standards details the requirements.

The Auditor interprets the phrase “confidential or otherwise” found in LSA-R.S. 24:513 I to include privileged documents. After careful examination of the law, we do not agree. Certain duties of the Auditor and his concomitant authority to access, examine, and copy documents in the possession of an auditee are set forth in LSA-R.S. 24:513, which provides, in pertinent part, as follows:

A. (l)(a) Subject to Paragraph (3) of this Subsection, the legislative auditor shall have authority to compile financial statements and to examine, audit, or review the books and accounts of the state treasurer, all public boards, commissions, agencies, departments, political subdivisions of the state, public officials and employees, public retirement systems enumerated in R.S. 11:173(A), municipalities, and all other public or quasi public agencies or bodies, hereinafter collectively referred to as the “au-ditee”. The scope of the examinations may include financial accountability, legal compliance and evaluations of the economy, efficiency, and effectiveness of the auditee’s programs or any combination of the foregoing. In addition to the authority granted above, the legislative auditor shall have access to and be permitted to examine all papers, books, accounts, records, files, instruments, documents, films, tapes, and any other forms of recordation of all auditees, including but not limited to computers and recording devices, and all software and hardware which hold data, is part of the technical processes leading up to the retention of data, or is part of the security system. This access shall not be prohibited by Paragraph (3) of this Subsection.
E. In the performance of his duties as herein stated, the legislative auditor, or any member of his staff designated by him, shall have the power to inspect and to make copies of any books, records, instruments, documents, files, films, tapes, and other forms of recordation, including but not limited to computer and recording devices, of the auditee. He may call upon the auditee and any of its officials and staff for assistance and advice, and such assistance shall be given through the assignment of personnel or in such other manner as necessity requires.
I. The authority granted to the legislative auditor in this Section to examine, audit, inspect or copy shall extend to all ■J^books, accounts, papers, documents, records, files, instruments, films, tapes, and any other forms of recordation, including but not limited to computers and recording devices, whether confidential or otherwise. However, the legislative auditor shall comply with any and all restrictions imposed by law on documents, data, or information deemed confidential by law and furnished to the legislative auditor, (emphasis added).
M.(l) In the performance of his duties the legislative auditor, or any member of his staff designated by him, may compel the production of public and private books, documents, records, papers, films, tapes, and electronic data processing media. For such purpose the legislative auditor and the chairman of the Legislative Audit Advisory Council may jointly issue a subpoena for the production of documentary evidence to compel the production of any books, documents, records, papers, films, tapes, and electronic data processing media regarding any transaction involving a governmental entity.

The Department contends that there is a difference between information that is “privileged” (ie., protected by a recognized legal privilege) and information that is “confidential.” It argues that the data to which the Auditor has been granted access pursuant to LSA-R.S. 24:513 cannot and does not extend to privileged data, nor to information that is part of the deliberative process. In support, the Department argues that while the language of LSA-R.S. 24:513, as set forth in LSA-R.S. 24:513 I, refers to and authorizes the Auditor to access confidential information, the statute omits (and therefore does not allow for) access to privileged information.

The attorney-client privilege is recognized by the legislature in LSA-C.E. art. 506, which specifically provides that “[a] client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication” under certain circumstances. LSA-C.E. art. 506B. It is a very important privilege, with a long jurisprudential history. See Frank L. Maraist, Evidence and Proof in 19 Louisiana Civil Law Treatise, § 8.6 (2d ed.2007). The deliberative process privilege protects “confidential intra-agency advisory opinions disclosure of which would be injurious to the consultative functions of government.” Kyle v. Louisiana Public Service Commission, 878 So.2d at 659, quoting Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666, 677 (D.C.Cir.1981).

The Auditor contends that the requirement of LSA-R.S. 24:513 I that the Auditor maintain confidentiality of any confidential documents received is sufficient to safeguard the privileges. While the legal requirement regarding the confidentiality is correct, and is sufficient to prevent access to documents pursuant to the Public Records Law, we do not find it persuasive in this context. See Kyle v. Perrilloux, 02-1816 (La.App. 1 Cir. 11/7/03), 868 So.2d 27. We note the mandate of LSA-R.S. 24:513 I that the Auditor comply with any and all “restrictions imposed by law.” A “privilege” constitutes a “restriction imposed by law.” Further, the law controls how the Auditor must treat the information it receives. The Auditor must maintain confidentiality. However, this does not answer the question before us, which is whether the Auditor has a right to receive the information in the first place.

We find merit in the Department’s assertion that the language of LSA-R.S. 24:513, which grants the Auditor broad access to information, “confidential or otherwise,” does not extend to “confidential” communications that might be subject to an evidentiary privilege. We note that Louisiana Code of Evidence article 1101 A(2) provides, in pertinent part, with regard to privileges:

Furthermore, except as otherwise provided by legislation, Chapter 5 of this Code with respect to testimonial privileges applies to all stages |iaof all actions, cases, and proceedings where there is power to subpoena witnesses, including administrative, ... legislative, ... and judicial proceedings.

Additionally, there are numerous instances in the law where the legislature has explicitly mentioned, or differentiated “confidential” from “privileged” in order to show whether it intended the words “confidential or otherwise” to encompass privileged material. Statutes have repeatedly designated when a privilege is to be included when dealing with information or communications. One example is found in Title 24, and particularly references the Department. Subsection C of LSA-R.S. 24:775 provides that “[t]he commissioner [of insurance] shall furnish the committee [legislative committee] with all information and data which the committee requests except for any such information which is privileged or confidential by law.” See also LSA-R.S. 22:2, LSA-R.S. 22:689, LSA-R.S. 40:1232.7.

Had the legislature intended privileged information to be included in LSA-R.S. 24:513 I, it would have said “confidential, privileged, or otherwise,” and not just “confidential or otherwise.” Information that is privileged is always confidential, but confidential information is not always privileged. When the legislature intends for privileged information to be overridden by statute, the statute clearly indicates that the privilege is trumped by the statute. In the present case, there is no indication that the statute in question is specifically intended to supplant any privilege. Due to the importance of the attorney-client privilege, any doubt as to whether privilege should be encompassed by the words “confidential or otherwise” should be resolved in favor of the two words’ separate natures in order to preserve the privilege.

We find further support for this position by interpreting the provisions of Chapter 8 of Title 24 only. The legislature repeatedly employs the qualifier, “in the performance of his duties” when providing for the authority of the |14Auditor. We are led inescapably to the conclusion that the access to information granted to the Auditor is only to include information that is reasonably related to a lawfully performed audit. Therefore, we find that an auditee has the right to challenge access to any documents that it believes it is not legally required to submit. In the case of disputes regarding the necessity for receipt of documents in order for the Auditor to lawfully perform his duties, the district court must resolve the dispute, and in camera inspections are available for balancing the need to protect privileged documents with the requirement for transparency in fiscal matters involving public funds. Further, considering the vital roles and competing interests of the Auditor and Department in serving the people of Louisiana and the need for openness and prompt resolution of disputes that arise in the auditing process, it is imperative that any legal challenge be decided expeditiously so as to avoid undue delay. There is a compelling interest to do so.

CONCLUSION

We conclude that an auditee’s duty to provide information to the Auditor in connection with an audit is restricted by evi-dentiary privileges, whether legislatively enacted or jurisprudentially created. We further conclude, that any dispute between the Auditor’s office and an auditee must be resolved in accordance with the statute, i.e., that a subpoena must be filed jointly by the Auditor and the Legislative Audit Advisory Council. If the documents subpoenaed are not provided, then an action may be initiated in the appropriate district court, which must be heard expeditiously. An auditee also has the right to seek a ruling from the district court as to whether the documents sought by the auditor’s office are legally required to be submitted. Accordingly, we find error in the trial court’s conclusion that the Department failed to state a cause of action for a judgment declaring that the type of | ^information enumerated in LSA-R.S. 24:513 A(1)(a) excludes documents protected by the attorney-client and deliberative process privileges.

For the above and foregoing reasons, that portion of the trial court’s August 7, 2009 judgment granting the exception raising the objection of no cause of action is reversed. This matter is remanded for further proceedings, if necessary. Costs of this appeal in the amount of $1,697.49 are assessed against the Auditor.

REVERSED AND REMANDED.

WHIPPLE, J. dissents, for reasons assigned.

WHIPPLE, J.,

dissenting.

11 The majority holds that “an auditee’s duty to provide information to the legislative auditor in connection with an audit is restricted by any evidentiary privileges, whether legislatively enacted or jurispru-dentially created.” In my view, this conclusion is unsupported by law and, more importantly, undermines important public policy considerations: the need and desire for open and transparent accountability regarding the public fisc. Thus, I respectfully dissent from the majority’s decision to reverse the judgment of the trial court, which: (1) had maintained the Legislative Auditor’s exception of no cause of action on the basis that the Department of Insurance had not stated a cause of action for judgment declaring that the records sought by the Legislative Auditor were not discoverable due to the attorney-client and deliberative process privileges and (2) which also had maintained the exceptions of lack of subject matter jurisdiction and/or mootness with regard to the requests for injunctive relief.

According to the Department of Insurance, the legal question presented in this appeal is whether the Legislative Auditor is permitted to | ¡.obtain documents from a state agency (or other entity subject to its audit authority) where those documents are protected by the attorney-client and deliberative process privileges. Thus, this court was called upon to determine whether the law affords the Department of Insurance the right to assert, through a declaratory judgment action, these privileges against the Legislative Auditor’s request for access to Department of Insurance documents in conjunction -with financial and compliance audits.

The Office of the Legislative Auditor is established in the Louisiana Constitution. Article III, Section 11 provides that “[tjhere shall be a legislative auditor responsible solely to the legislature.” This constitutional article further provides that the Legislative Auditor shall serve as fiscal advisor to the legislature and “shall perform the duties and functions provided by law related to auditing fiscal records of the state, its agencies, and political subdivisions.” LSA-Const. art. III, § 11. Certain duties of the Legislative Auditor and his concomitant authority to access, examine, and copy documents in the possession of an auditee are set forth in LSA-R.S. 24:513, which provides, in pertinent part, as follows:

A. (l)(a) Subject to Paragraph (3) of this Subsection, the legislative auditor shall have authority to compile financial statements and to examine, audit, or review the books and accounts of the state treasurer, all public boards, commissions, agencies, departments, political subdivisions of the state, public officials and employees, public retirement systems enumerated in R.S. 11:173(A), municipalities, and all other public or quasi public agencies or bodies, hereinafter collectively referred to as the “auditee”. The scope of the examinations may include financial accountability, legal compliance and evaluations of the economy, efficiency, and effectiveness of the auditee’s programs or any combination of the foregoing. In addition to the authority granted above, the legislative auditor shall have access to and be permitted to examine all papers, books, accounts, records, files, instruments, documents, films, tapes, and any other forms of recordation of all auditees, including but not limited to computers and recording devices, and all software and hardware which hold data, is part of the technical processes | pleading up to the retention of data, or is part of the security system. This access shall not be prohibited by Paragraph (3) of this Subsection.
E. In the performance of his duties as herein stated, the legislative auditor, or any member of his staff designated by him, shall have the power to inspect and to make copies of any books, records, instruments, documents, files, films, tapes, and other forms of recordation, including but not limited to computer and recording devices, of the auditee. He may call upon the auditee and any of its officials and staff for assistance and advice, and such assistance shall be given through the assignment of personnel or in such other manner as necessity requires.
I. The authority granted to the legislative auditor in this Section to examine, audit, inspect or copy shall extend to all books, accounts, papers, documents, records, files, instruments, films, tapes, and any other forms of recordation, including but not limited to computers and recording devices, whether confidential or otherwise. However, the.legislative auditor shall comply with any and all restrictions imposed by law on documents, data, or information deemed confidential by law and furnished to the legislative auditor.
M. (1) In the performance of his duties the legislative auditor, or any member of his staff designated by him, may compel the production of public and private books, documents, records, papers, films, tapes, and electronic data processing media. For such purpose the legislative auditor and the chairman of the Legislative Audit Advisory Council may jointly issue a subpoena for the production of documentary evidence to compel the production of any books, documents, records, papers, films, tapes, and electronic data processing media regarding any transaction involving a governmental entity.

(Emphasis added).

In furtherance of the statutory authority granted to the Legislative Auditor in LSA-R.S. 24:513 to access, examine, and copy documents of the auditee, the legislature has also imposed upon the auditee the duty to furnish such information to the Legislative Auditor. Specifically, LSA-R.S. 24:513(H) provides that “[a]ll auditees and their officials and staff are Rhereby directed to assist the legislative auditor in his work and to furnish such information, reports, aid, services, and assistance as may be requested, all without any cost or charge.” Additionally, LSA-R.S. 24:518 imposes penalties upon an auditee who refuses to furnish the Legislative Auditor with requested data, “whether confidential or otherwise.” (Emphasis added). Further, LSA-R.S. 24:513(M), which grants the Legislative Auditor and the Audit Advisory Council the authority to issue a subpoena to compel the production of data, further provides that the failure to obey such a subpoena may be punished as a contempt of court. Finally, LSA-R.S. 39:72.1(A) provides that “no funds ... shall be released or provided to any recipient of an appropriation if, when, and for as long as, the recipient fails or otherwise refuses to comply with the provisions of R.S. 24:513.” Thus, these provisions clearly grant the Legislative Auditor broad authority to access, examine and copy documentation of state agencies and departments and seek to compel compliance by an auditee to any requests for access.

In its brief on appeal, the Department of Insurance recognizes that the Legislature has the “prerogative to enact a statute that explicitly requires that documents produced to the [Legislative Auditor] must include documents protected by the attorney-client and deliberative process privileges, and, if such statute passes constitutional muster, auditees will be subject thereto.” Contending that there is a difference between “information that is ‘privileged’ (ie., protected by a recognized legal privilege) and information that is ‘confidential,’ ” it argues that the data to which the Legislative Auditor has been granted access pursuant to LSA-R.S. 24:513 “[cannot] and does not extend to privileged data.” In support, the Department of Insurance argues that while the language of LSA-R.S. 24:513, as set forth in LSA-R.S. 24:513(1), refers to and authorizes the Legislative Auditor to access | ¡¡confidential information, the statute omits (and therefore does not allow for) access to privileged information.

The attorney-client privilege is a statutory creation and is set forth in LSA-C.E. art. 506, which specifically provides that “[a] client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication” under certain circumstances. LSA-C.E. art. 506(B) (emphasis added). The “deliberative process privilege protects ‘confidential intra-agency advisory opinions disclosure of which would be injurious to the consultative functions of government.’ ” Kyle v. Louisiana Public Service Commission, 2003-0584 (La.App. 1st Cir.4/2/04), 878 So.2d 650, 659, quoting Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666, 677 (D.C.Cir.1981) (emphasis added). On review, I find no merit to the Department of Insurance’s assertion that the language of LSA-R.S. 24:513, which grants the Legislative Auditor broad access to information, “confidential or otherwise,” does not extend to “confidential” communications that might otherwise be subject to an evidentiary privilege.

In further support of its position that it has stated a cause of action for judgment declaring that the Legislative Auditor’s access to Department of Insurance data is limited by the attorney-client and deliberative process privileges, the Department of Insurance relies upon this court’s previous opinion in Kyle v. Louisiana Public Service Commission. At the outset, I note that in Kyle, the Legislative Auditor sought to obtain emails from the Louisiana Public Service Commission as part of a performance audit, an |naudit specifically limited in scope by the statute authorizing it. When the Public Service Commission denied the Legislative Auditor access to certain emails until they could be reviewed to insure that they did not contain privileged material, the Legislative Auditor filed a petition for writ of mandamus in the district court, contending that the Public Service Commission had no discretion in regard to producing the documents needed by the Legislative Auditor to conduct the performance audit. Kyle, 878 So.2d at 651.

In reversing the district court’s grant of a writ of mandamus, this court held that mandamus was not the proper procedural vehicle to compel production of the emails sought by the Legislative Auditor. Rather, this court held the Legislative Auditor should have sought the documentation purportedly necessary for a performance audit “through the courts by subpoena.” Kyle v. Louisiana Public Service Commission, 878 So.2d at 654; see LSA-R.S. 24:513(M)(1) (which provides that the Legislative Auditor may compel the production of documentation by jointly issuing a subpoena with the Audit Advisory Council). Thus, because this court determined that mandamus was “not lawful” as a procedure to compel production of the documentation sought, Kyle v. Louisiana Public Service Commission, 878 So.2d at 655, we did not have to reach the substantive issue of whether the Legislative Auditor’s access to documentation could be restricted by any privileges.

17Moreover, although this court thereafter discussed, arguably in dicta, an audi-tee’s right to assert the attorney-client and deliberative process .privileges, this court specifically noted that our analysis of that issue was limited to the particular facts before us, ie., a performance audit, a type of audit not at issue herein. Kyle v. Louisiana Public Service Commission, 878 So.2d at 657-659. Accordingly, because the audits at issue herein were fiscal and compliance audits, I would conclude that any opinions or observations made by the court in Kyle are not dispositive of the issues squarely before us in the present case. As stated above, in the context of a fiscal audit, the access granted to the Legislative Auditor pursuant to LSA-R.S. 24:513, by the very language of the statute, is broad, extending to data that is “confidential or otherwise.” LSA-R.S. 24:513(1).

Nonetheless, the Department of Insurance suggests that this broad grant of authority is nonetheless limited by the attorney-client privilege, an evidentiary privilege set forth in LSA-C.E. art. 506, and the deliberative process privilege, a juris-prudentially created doctrine. I note, as did this court in Kyle, that there is little jurisprudence in this state interpreting LSA-R.S. 24:513. Moreover, I have found no jurisprudence in this state discussing whether the broad access granted to the Legislative Auditor by this statute may be limited by the privileges at issue where the Legislative Auditor seeks the information in the performance of financial and compliance audits.

IsHowever, one opinion I have found to be persuasive and instructive, even though it involved a performance audit rather than a financial or compliance audit, is a 2007 opinion of the Nebraska Attorney General in which he was called upon to determine whether the authority of Nebraska’s Legislative Performance Audit Committee to review the records of state agencies was subject to the attorney-client privilege. Neb. Op. Att’y Gen. No. 07004 (2007). In its 2007 opinion, the Nebraska Attorney General noted that previously in 2004, the Nebraska Legislative Performance Audit Committee had asked the Nebraska Attorney General for an opinion on whether the audit committee had inherent authority to access any and all of an agency’s information and records, confidential or otherwise. Neb. Op. Att’y Gen. No. 07004 at p. 1; Neb. Op. Atty. Gen. No. 04022, p. 2 (2004). In that previous opinion, the Nebraska Attorney General opined that state “agencies may well be able to assert evidentiary privileges in response to records requests from the Committee in connection with an audit,” but noted that some of the uncertainties in the state’s statutes could be remedied by clarifying legislation to overcome an evidentiary privilege in an audit. Neb. Op. Att’y Gen. No. 04022 at p. 4.

In his 2007 opinion, the Nebraska Attorney General further noted that after the issuance of the 2004 opinion, the Nebraska Legislature had amended the Nebraska statutes to specifically provide that the Legislative Performance Audit Section “shall have access to any and all information and records, confidential or otherwise, of any agency.” Neb.Rev.Stat. § 50-1213(1); Neb. Op. Att’y Gen. No. 07004 at p. 3. The Attorney General noted, however, that the attorney-client privilege was also codified in 19Nebraska law in Neb.Rev.Stat. § 27-503. Neb. Op. Att’y Gen. No. 07004 at p. 3. Nonetheless, the Nebraska Attorney General concluded that it was possible to construe and apply § 50-1213(1) and § 27-503 in a way that gave effect to both statutes by taking into account the confidentiality provisions contained in additional subsections of § 50-1213. Neb. Op. Att’y Gen. No. 07004 at p. 4.

Specifically, the Nebraska Attorney General noted that after § 50-1213(1) established the Legislative Performance Audit Section’s right to access information in connection with a performance audit, additional subsections of that same statute imposed confidentiality requirements upon the Legislative Performance Audit Section and the members of the Legislative Performance Audit Committee. The Statute provided, in part: (1) that “any confidential information or confidential records shared with the section shall remain confidential”; (2) that any speaker, chairperson or employee who knowingly divulged such confidential information or records shall be guilty of a misdemeanor; (3) that no member of the committee or section employee acting at the direction of the committee shall be required to testify or produce evidence in any judicial or administrative proceeding concerning matters relating to the work of the section; and (4) that the working papers obtained or produced by the committee or section shall not be considered public records. Neb.Rev.Stat. § 50 — 1213(2)—(5); Neb. Op. Att’y Gen. No. 07004 at pp. 4-5.

Thus, the Nebraska Attorney General concluded that while § 50-1213(1) clearly granted the Legislative Performance Audit Section broad access to confidential information for the purpose of performance audits, latter subsections of the statute strictly prohibited the disclosure and dissemination of that confidential information. Accordingly, the Nebraska 110Attorney General concluded that, giving effect to both § 50-1213 and the attorney-client privilege as set forth in § 27-503, the Legislative Performance Audit Section would “have access to confidential material subject to the attorney/client privilege, yet the privilege could be preserved, since the material could not be disclosed.” Neb. Op. Att’y Gen. No. 07004 at p. 5.

For those reasons, the Nebraska Attorney General opined that, in connection with the performance audit of an agency, the Legislative Performance Audit Section could access information and records belonging to that agency which were subject to the attorney-client privilege. However, like Louisiana’s statutory scheme, the Nebraska statute includes protections from unwarranted disclosures by providing that privileged information could neither be included nor discussed in the Section’s audit report, nor could the Section, its employees, or the Committee disclose that privileged material in any manner contrary to § 50-1213. Neb. Op. Att’y Gen. No. 07004 at p. 5.

Similarly, in the instant case, while the access granted to the Legislative Auditor pursuant to LSA-R.S. 24:513 is broad, extending to data that is “confidential or otherwise,” LSA-R.S. 24:513(1) further provides that the Legislative Auditor must “comply with any and all restrictions imposed by law on documents, data, or information deemed confidential by law and furnished to the legislative auditor.” (Emphasis added); Kyle v. Perrilloux, 2002-1816 (La.App. 1st Cir.11/7/03), 868 So.2d 27, 32-33; La. Op. Att’y Gen. No. 08-0055A (2008). Clearly, this provision places a recognizable duty on the Legislative Auditor to protect the data provided to 1 nhim which is confidential and which may be protected by any evidentiary privilege.

Moreover, pursuant to LSA-R.S. 24:513(G), although the audit reports issued by the Legislative Auditor are public records as provided by LSA-R.S. 44:6, “any documents, data, or information furnished the legislative auditor which are deemed confidential by law” are specifically exempted from the Public Records Law. Kyle v. Perrilloux, 868 So.2d at 32-33. Similarly, LSA-R.S. 44:4(6) exempts from the Public Records Act “any records, writings, accounts, letters, letter books, photographs, or copies or memoranda thereof in the custody or control of the legislative auditor,” thereby further protecting data provided to the Legislative Auditor from disclosure. See La. Op. Att’y Gen. No. 08-0055A at p. 1.

Additionally, as further protection against a breach of the duties set forth in LSA-R.S. 24:513, subsection K of LSA-R.S. 24:513 provides that “[wjhoever violates the provisions of this Section shall be fined not more than one thousand dollars and shall be deemed guilty of malfeasance or gross misconduct in office, and shall be subject to removal.”

Thus, similar to the statutory framework of Nebraska, the legislation of our state granting the Legislative Auditor access to data of state agencies |12in the performance of financial and compliance audits, “whether confidential or otherwise,” can be reconciled with other legislation or jurisprudence establishing evidentiary privileges as to certain confidential information. Because of the protections against disclosure by the Legislative Auditor of confidential information that is provided to the Legislative Auditor by an auditee, I would conclude that an auditee’s duty to provide information to the Legislative Auditor in connection with a financial or compliance audit is not tempered or restricted by any evidentiary privileges, whether legislatively enacted or jurisprudentially created. Accordingly, I find no error in the trial court’s conclusion that the Department of Insurance had failed to state a cause of action for judgment declaring that the type of data enumerated in LSA-R.S. 24:513(A)(1)(a) excludes documents protected by the attorney-client or deliberative process privileges.

For these reasons, I respectfully dissent.

      . References to the Auditor in this opinion include members of his staff authorized to act on his behalf.

      . Louisiana Revised Statutes 24:513 H provides, “All auditees and their officials and staff are hereby directed to assist the legislative auditor in his work and to furnish such information, reports, aid, services, and assistance as may be requested, all without any cost or charge. It shall be the duty of the attorney general and the local district attorney to give assistance to the legislative auditor. The attorney general shall render his opinion in writing on any subject requested by the legislative auditor.”

      . The Auditor, explaining that the letter was not sent specifically to single out the Department for any improper purpose, testified that it was “a standard letter that our office sends when we have not gotten full cooperation from an auditee.”

      . Testimony in the trial court established that the attorney general’s office did investigate the matter, but did not find any evidence of fraud that would necessitate taking further action.

      . The only exception addressing the Department’s request for a declaratory judgment on privileged information was the peremptory exception raising the objection of no cause of action.

      . The financial condition of the State obviously is a concern that all branches of government consider, but the control of monies and responsibility for fiscal policy statewide is shared between the legislative and executive branches.

      . A "confidential” communication is further defined as a communication that "is not intended to be disclosed to persons other than” those to whom the disclosure is made in furtherance of obtaining or rendering professional legal services, those reasonably necessary for the transmission of the communication, and, when special circumstances warrant, those who are present at the behest of the client and are reasonably necessary to facilitate the communication. LSA-C.E. art. 506(A)(5).

      . A "confidential" communication is further defined as a communication that “is not intended to be disclosed to persons other than” those to whom the communication is made in furtherance of obtaining or rendering professional legal services, those reasonably necessary for the transmission of the communication, and, when special circumstances warrant, those who are present at the behest of the client and are reasonably necessary to facilitate the communication. LSA-C.E. art. 506(A)(5).

      . The Louisiana Performance Audit Program was created to identify and plan for the state's long-term needs in addition to finding solutions to present fiscal problems and, in furtherance of that goal, empowers the Legislative Auditor to evaluate and audit the functions and activities of the agencies of state government. LSA-R.S. 24:522; La. Op. Att'y Gen. No. 07-0168, p. 3 (2008).

      . In Kyle, this court suggested that an auditee had the right to assert both the attorney-client and the deliberative process privileges to limit the Legislative Auditor’s access to information he sought in conducting a performance audit. Stating that the statutorily created Performance Audit Program did not require the Legislative Auditor to perform the functions he was attempting to perform, i.e., evaluating, verifying, and analyzing the communications between employees of a particular agency, the entities it regulates, and the citizens as a whole when that agency is an executive branch office, we questioned whether, under the facts therein, the Public Service Commission had a duty to disclose the communications at issue. Kyle v. Louisiana Public Service Commission. 878 So.2d at 656-657 & 658-659.

      . However, the Nebraska Attorney General further opined that the general authority of the Nebraska Legislative Auditor was broader than that of the Performance Audit Committee. Neb. Op. Att’y Gen. No. 04022 at p. 4.

      . See also LSA-C.E. art. 502 B, which provides that "[a] claim of privilege is not defeated by a disclosure which ... was compelled.”

      . Louisiana Revised Statute 44:4(6) provides: "This Chapter shall not apply ... [t]o any records, writings, accounts, letters, letter books, photographs, or copies or memoranda thereof in the custody or control of the legislative auditor, or to the actual working papers of the internal auditor of a municipality until the audit is complete, unless otherwise provided.” (Emphasis added). The language "or to the actual working papers of the internal auditor of a municipality until the audit is complete” was added by Louisiana Acts 1991, No. 167. In interpreting LSA-R.S. 44:4(6), the Louisiana Attorney General has opined that the language addressing the length of the exemption (z'.e., until the audit is complete) should not apply to the Legislative Auditor. La. Op. Att'y Gen. No. 08-0055A at p. 1. Given that this particular language was added as part of the phraseology exempting working papers of the internal auditor of a municipality, I agree with the Attorney General’s interpretation that the time limitation imposed on this exemption from the Public Records Act does not apply to the Legislative Auditor. See generally Kyle v. Perrilloux, 868 So.2d at 32-33.


source: Caselaw Access Project

author: McDONALD, J.

license: Public Domain

text:
    TEXANS CREDIT UNION v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Louisiana State Cypress, LLC, Louisiana State Market Commission and Louisiana Agricultural Finance Authority.
    No. 2010 CA 1476.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2011.
    Rehearing Denied June 8, 2011.

      John Michael Landis, Lesli D. Harris, New Orleans, LA, for PlaintiffiAppellee Texans Credit Union.
    Patrick Kelly Reso, Frank J. Divittorio, Hammond, LA, for Defendant/Appellee Louisiana State Cypress, LLC.
    Kathy Lee Torregano, Hammond, LA, for Defendant/Appellant Louisiana Department of Agriculture and Forestry and Louisiana Agricultural Finance Authority.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDONALD, J.

| ¡.This is an appeal of a partial summary judgment. On October 14, 2009, Texans Credit Union (TCU) filed suit against Louisiana State Cypress, L.L.C. (Cypress), the Louisiana Department of Agriculture and Forestry (the Department), the Louisiana State Market Commission (the State Market Commission), and the Louisiana Agricultural Finance Authority (the Agricultural Finance Authority), which was the successor to the State Market Commission. (Collectively, the Department and the Agricultural Finance Authority are sometimes referred to as the State defendants.)

TCU was seeking to enforce its rights against Cypress, which had borrowed $3,150,000.00 from TCU in June of 2007. The TCU loan was a refinancing of an existing loan made to Cypress from Capital One Bank (Capital One, formerly known as Hibernia National Bank). The Capital One loan was secured by all of Cypress’s immovable and movable property, guarantees by two of Cypress’s members and a guarantee by the State Market Commission pursuant to the Louisiana Agricultural Products Processing Development Law, La. R.S. 3:446.1-446.7, (the Products Processing Development Law).

When the loan was refinanced, the State Market Commission transferred its Products Processing Development Law guarantee to the TCU loan, and Capital One assigned its security interest in Cypress’s assets and the member guarantees to the State Market Commission to serve as collateral for the State Market Commission in the event it was called upon to honor its guarantee to TCU. Thus, the only collateral for the TCU loan was the State Market Commission’s guarantee to TCU under the Products Processing Development Law.

| oBefore the loan from TCU was confect-ed, TCU received a copy of a written legal opinion from the Department’s general counsel, J. Marvin Montgomery, dated June 13, 2007, and addressed to the State Market Commission director, Randy Rogers, stating that the State Market Commission guarantee was authorized, was legal, and did not require the approval of any other governmental body.

After Cypress failed to make scheduled principal and interest payments to TCU in June of 2009, TCU made demands upon Cypress and the State Market Commission to honor their obligations under the loan and the guarantee. The State Market Commission rejected the demand, contending that the guarantee was unenforceable because it had not been approved by the Louisiana State Bond Commission (the State Bond Commission.)

TCU asserted that it had reasonably relied upon the Department’s general counsel’s legal opinion in agreeing to make the loan and to accept the guarantee as collateral. TCU prayed that judgment be rendered in its favor and against the State defendants, declaring that Cypress and the State Market Commission were in default of their obligations under the TCU loan documents, and ordering the defendants to pay TCU all principal, interest, default interest, and late fees due under the Cypress note, along with reasonable attorney fees and collection costs, and any other relief to which TCU was entitled.

In its answer, the Department and the Agricultural Finance Authority asserted that pursuant to La. R.S. S9:1405(B), the State Market Commission was required to obtain the approval of the State Bond Commission prior to guaranteeing the debts of others; thus, the State Market Commission guarantee was void ab initio, unenforceable, and contrary to public policy. Further, the Department and the Agricultural Finance Authority demanded that TCU provide strict proof of the requisite elements of detrimental reliance and the change in |4TCU’s position due to such reliance. The Department and the Agricultural Finance Authority asked that the suit be dismissed with prejudice. The Department and the Agricultural Finance Authority also filed a peremptory exception of no cause of action, asking that the suit be dismissed with prejudice, because it failed to state a cause of action since the guarantee that TCU relied upon to enforce the debt was void ab initio, unenforceable, and contrary to public policy.

Thereafter, TCU filed a motion for partial summary judgment against the defendants, asserting that there were no factual disputes that were material to the State Market Commission’s liability to TCU under the guarantee. TCU asserted that the State defendants did not dispute that the guarantee was given, or that the loan was in default, and that the only issue was a question of law as to whether the guarantee agreed to by the State Market Commission was valid and enforceable without being approved by the State Bond Commission. TCU asserted that the Products Processing Development Law did not require that a loan guarantee by the State Market Commission be approved by the State Bond Commission; thus, it was entitled to a judgment as a matter of law against the State defendants for all amounts due under the defaulted promissory note that was guaranteed by the Commission pursuant to the Products Processing Development Law. TCU attached to its motion Louisiana Attorney General Opinion 08-0258, addressed to Craig Gan-nuch, Assistant Commissioner of the Department, which found that “[t]he State Market Commission must seek State Bond Commission approval before guaranteeing debts of others but not before making loans as authorized by [3:446.4(A) ].”

After a hearing, the district court denied the peremptory exception of no cause of action filed by the Department and the Agricultural Finance Authority, granted the motion for partial summary judgment by TCU, and found that the State Market Commission was not required to obtain the approval of the State Bond [ ^Commission prior to making a loan guarantee in favor of TCU. The district court certified that the judgment was a partial final judgment pursuant to La. C.C.P. art. 1915(B)(1). The Department and the Agricultural Finance Authority are appealing that judgment.

The only issue on appeal is whether the district court erred in granting a motion for partial summary judgment in favor of TCU and ruling that TCU could enforce a guarantee agreement against the State defendants that was entered into by the State Market Commission without prior approval by the State Bond Commission.

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966 A(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Hays v. Louisiana State Board of Elementary and Secondary Education, 09-1386, p. 4 (La.App. 1 Cir. 6/11/10), 39 So.3d 818, 820, writ denied, 10-1640 (La.10/8/10), 46 So.3d 1272.

In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must also apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Hays, Id.

Legislation is the solemn expression of legislative will. La. C.C. art. 2. Therefore, the interpretation of a law involves primarily the search for the legislature’s intent. We have consistently held that the starting point in interpreting | fiany statute is the language of the statute itself. Landry v. Louisiana Citizens Property Insurance Company, 07-1907, 07-1908, p. 20 (La.5/21/08), 983 So.2d 66, 79.

The purpose of the Products Processing Development Law was to “develop and enhance the capacity to process agricultural products in Louisiana including providing financial assistance to any person who owns, leases, or operates, or is seeking to own, lease, or operate an agricultural plant in this state, as the state’s participation in cooperative endeavors involving the State Market Commission and any qualified applicant.” La. R.S. 3:446.1.

One charge of the State Market Commission was to foster this development and enhancement by “participating in cooperative endeavors involving loans and loan guarantees to private business enterprises.” La. R.S. 3:446.3(E). The Products Processing Development Law did not provide that any financial obligation incurred by the Department be authorized by the State Bond Commission. Further, there is no reference of any type to the State Bond Commission in the Products Processing Development Law. La. R.S. 3:446.1-446.7.

Rather, the Products Processing Development Law contained its own set of internal guidelines for guaranteeing loans and taking on obligations in that “[e]ach cooperative endeavor and each contract entered into by the commission shall be subject to review by the legislative auditor.” La. R.S. 3:446.5(F). Annual reports were required to be given by the State Market Commission to the House and Senate Committees on Agriculture, the House Committee on Appropriations, and the Senate Committee on Finance. La. R.S. 3:446.5(G). In addition, the activities of the State Market Commission under the Products Processing Development Law were to be periodically reviewed and examined by the commissioner of financial institutions. La. R.S. 3:446.5(H).

[7The initial legislative grant of authority to the State Market Commission in 1944 to make loans and loan guarantees included an express requirement that the State Market Commission obtain prior approval and consent of the Board of Liquidation of State Debt (the predecessor to the State Bond Commission.) Acts 1944, No. 113. This requirement was carried over into former La. R.S. 3:411. That requirement, however, was eliminated in 1978 by Acts 1978, No. 242, § 1, and it has never been reinstated.

The only limitations thereafter imposed on the State Market Commission’s ability to make loans and loan guarantees was found in former La. R.S. 3:446.5A, which provided the terms under which loans and loan guarantees may be made, and La. R.S. 3:446.5 B, which provides an aggregate limit on outstanding loan and loan guarantees of twenty million dollars at any one time. Further, La. R.S. 3:446.5 D and E provide for certain prohibited transactions.

The legislature is presumed to have enacted an article or statute in light of the preceding law involving the same subject matter and court decisions construing those articles or statutes. La. R.S. 24:177 C. Where the new article or statute is worded differently from the preceding article or statute, the legislature is presumed to have intended to change the law. La.R.S. 24:177 C; Brown v. Texas-LA Cartage, Inc., 98-1063, p. 7 (La.12/1/98), 721 So.2d 885, 889.

Herein, the plain, unambiguous language of the Products Processing Development Law does not require the Bond Commission to approve loan guarantees by the State Market Commission. Further, the legislature is presumed to have intended to change the law so that the State Bond Commission was not required to approve loan guarantees made by the State Market Commission.

Thus, we find that the district court was correct in finding that the State Market Commission was not required to obtain the approval of the State Bond Commission prior to making the particular loan guarantee at issue in favor of TCU.

^Accordingly, after our de novo review of the record, we find that the district court properly denied the peremptory exception of no cause of action filed by the Louisiana Department of Agriculture and Forestry and the Louisiana Agricultural Finance Authority and properly awarded partial summary judgment in favor of Texans Credit Union and against the Louisiana Department of Agriculture and Forestry and the Louisiana Agricultural Finance Authority. That district court judgment, dated May 13, 2010, is affirmed.

Costs in the amount of $1,432.50 are assessed one-half each against the Louisiana Department of Agriculture and Forestry and the Louisiana Agricultural Finance Authority.

AFFIRMED.

      . Louisiana Revised Statutes 3:446.1 to 446.7 were repealed by Acts 2009. No. 24 § 7, effective June 12, 2009.


author: DREW, J.

text:
    Kim ATCHISON, Plaintiff-Appellant v. MONROE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 46,178-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 4, 2011.

      Michael Lee DuBos, K. Lamar Walters III, Breithaupt, Dunn, DuBos, Shafto & Wolleson, LLC, Monroe, LA, Kelly N. Clay, Mandeville, LA, for Appellant, Kim Atchison.
    Elmer G. Noah, II, Hammonds & Sills, Monroe, LA, for Appellee Monroe Municipal Fire and Police Civil Service Board.
    Nanci S. Summersgill, for Appellee City of Monroe.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

|T Corporal Kim Atchison, a nine-year veteran of the Monroe Police Department (“MPD”), was terminated by Chief Ron Schleuter on June 10, 2008, for numerous violations of the sick leave policy, the off-duty/log-out policy, and for untruthfulness. The Monroe Municipal Fire and Police Civil Service Board upheld the termination on a 3-1 vote. La. R.S. 33:2501. Atchison appealed her termination to the Fourth Judicial District Court. La. R.S. 33:2501(E).

The district court found that termination was excessive discipline and disproportionate to the sanctions received by other similarly situated MPD officers. However, the district court affirmed Atchison’s firing, holding that the civil service board’s decision was in good faith and based upon cause. The trial court believed it lacked authority to modify the imposed discipline to a lesser one.

Because the decision of the trial court was based upon an erroneous interpretation of its authority, we amend that portion of the trial court’s judgment which affirmed Atchison’s termination. We affirm the judgment as amended and adopt the trial'court’s detailed written reasons (“Ruling Regarding Civil Service Appeal”), attached hereto as an appendix and made a part of this opinion. The amended penalty imposed upon Atchison is the maximum provided by La. R.S. 33:2500(B), 90 days without pay or benefits.

^EVIDENCE AND TESTIMONY

Chief Schleuter testified that Atchison was terminated for 27 violations of sick leave policy, not calling out on off-duty jobs and lying to the chief in his office when she stated that she never called to log out after working off-duty jobs. Further investigation showed that Atchison had called out over 100 times during her employment. The chief stated that her termination was based upon the combination of the violations. In addition, the chief and the board’s attorney discovered over 10 additional occasions when she worked off-duty and had not called out.

On cross-examination, the chief acknowledged incidents involving other officers who had lied but were not terminated. The chief sought to distinguish the situations by the severity and number of her violations.

Because she was untruthful, the chief stated at the civil service board hearing that Atchison was of no use to the MPD under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). False statements made under oath adversely affect the credibility of officers testifying at trials. Giglio, supra. Atchison’s statements to the chief during the internal affairs investigation were not made under oath. The chief stated Atchison was an exemplary officer for her first two or three years, but she then went downhill. The record showed this was her first disciplinary proceeding.

Since 2004 there had been 10 cases of officers lying during internal affairs investigations. Some of those persons were not terminated and the 1 ^policy for violations of the lying prohibition was described as “loose.” Due to Atchison’s number of violations, the chief decided to draw the line and not tolerate her conduct. In January 2008 the chief imposed the new termination policy for lying. No written policy was issued because, in the chiefs view, the truthfulness rule was clear in the policy and procedure manual. When other changes in MPD policy were made, a written notice of the modification was distributed and signed by each individual police officer.

Chief Schleuter testified that the sick leave policy provided that an officer out “for more than three (3) days in a quarter due to illness” was ineligible to work off-duty that quarter and the next quarter, although he/she had the right to petition the chief for permission to work off-duty. A stated exception to the policy was “(This excludes absences due to major or extended illness and/or injury.)” The policy did not define “major or extended illness and/or injury.”

On cross-examination, the chief ambiguously answered questions relative to MPD officers who are out on sick leave:

• Exactly when did a “sick leave” situation morph into a “major or extended illness and/or injury” situation?; and
• How many days of sickness were necessary before sick MPD officers were considered to be in a “major illness” situation?

The chief testified that most reasonable and prudent people would consider a major illness a heart attack or cancer. In his opinion, a cold or 4-5 or 10 days would not be a major illness. Atchison’s six-month absence for a knee injury was considered a major injury. The chief declined to name |4the number of days an officer had to be out for a major illness, stating that was “totally up to administrative discretion.” Specifically, the chief stated if an officer was shot in the line of duty, had a heart attack, had cancer “or whatever,” they gave consideration. Atchison had been off 10 days for pneumonia during the termination triggering time-frame.

In imposing penalties upon officers who violate policy and procedure, the chief testified it was appropriate to consider how previous violations of the rules by other employees in similar situations were handled along with previous discipline taken against the offending employee. Additionally, the chief acknowledged that the ultimate goal of discipline and penalties is to change the conduct of the employee and rehabilitate the behavior.

The chief was adamant in his testimony to the civil service board that he terminated Atchison in good faith and for cause because of the magnitude of her violations.

LAW

In Lensey v. City of Shreveport Municipal Fire and Police Civil Service Board, 36,934 (La.App.2d Cir.3/5/03), 839 So.2d 1032, writ denied, 2003-0997 (La.6/6/03), 845 So.2d 1091, Judge Moore discussed the proper standard of review for appeals from rulings by a fire and police civil service board. The reviewing court must determine if the decision reached was arbitrary and capricious. Unless a real and substantial relationship between the improper conduct and the efficient operation of the public agency exists, the discipline imposed will be deemed arbitrary and capricious. The police department must demonstrate by a preponderance of |Bthe evidence that the conduct impaired the efficiency and orderly operation of the public agency.

In civil service cases, appellate review is a multifaceted function. First, factual findings are to be given deference. As in all civil cases, the clearly wrong or manifestly erroneous standard must be used by the appellate court. Lensey, supra.

Second, in weighing the civil service board’s determination as to whether the discipline is based upon legal cause and commensurate with the violation, the appellate court must not change the penalty unless it is found to be arbitrary, capricious, and an abuse of discretion. An action is arbitrary and capricious if it is without rational basis. Discipline imposed upon a civil service employee is arbitrary and capricious unless there is a real and substantial connection between the offending conduct and the efficient operation of the public service. Lensey, supra.

Respective Positions of the Parties

Plaintiff, Corporal Kim Atchison, requests reinstatement, back pay, and attorney’s fees, alleging that the board’s ruling was arbitrary and capricious in affirming Chief Schleuter’s decision to terminate her employment, in that:

1. Her actions did not impair the efficient and orderly operation of the MPD;
2. The Chiefs decision to terminate her employment was largely based on actions that did not violate express provisions of departmental policy; and
3. Her punishment (termination) was excessive and disproportionate to sanctions received by other similarly situated MPD officers.

| f,Defendant, Monroe Municipal Fire and Police Civil Service Board, alleges that:

1. Her actions adversely affected the operation of the MPD;
2. Her actions knowingly violated many express policies of the MPD, specifically including a requirement that she “log out/call out” for off-duty jobs taken while on sick leave; and
3. She was untruthful during an internal affairs interview.

DISCUSSION

Based upon the evidence in this record, the trial court correctly ruled that the Monroe Police and Fire Civil Service Board was neither clearly wrong nor manifestly erroneous in finding that Atchison had violated some departmental policies. While she had logged out for off-duty work over 100 times during her employment, she did not do so on others.

In reviewing Atchison’s penalty, we find that the trial court committed a fundamental error that prevented it from making an adjustment to Atchison’s penalty (termination) after it found this penalty to be excessive and disproportionate when compared with punishment imposed upon other MPD officers in somewhat similar situations. The trial court apparently concluded it lacked authority to adjust the penalty and took no corrective action in spite of its negative evaluation of the termination.

Specifically, the trial court noted:

The court agrees with the Plaintiffs contention that her termination is excessive discipline and is without question disproportionate to the sanctions received by similarly situated MPD officers.

17Petective Quentin Holmes, administrative assistant to the chief of police, stated his duties included boosting morale within the department. Holmes felt that fair and even-handed discipline was fundamental to good morale. Based upon Atchison’s situation and the written sick leave policy, Holmes opined that he would not have fired Atchison but would have imposed discipline and warnings to correct the behavior. Because Atchison was not given warnings or previous discipline, Holmes disagreed with her termination while acknowledging that was this was the chiefs responsibility and decision.

In Lensey, swpra, this court reversed Lensey’s termination and imposed a 90-day suspension without pay and benefits. This action was based upon the determination that the City failed to meet the required burden of proof that Lensey’s conduct impaired the efficient operation of the police department.

Because a zero tolerance policy for driving a department vehicle while intoxicated had not been formally publicized, the Fourth Circuit reversed the termination of an NOPD officer who drunkenly drove a department vehicle into a fence. Whitaker v. New Orleans Police Dept., 2003-0512 (La.App. 4th Cir.9/17/03), 863 So.2d 572. This mishap occurred while Whitaker was off-duty. The four-year veteran had a discipline-free record, made restitution for the fence, and attended an alcohol rehabilitation program. Notwithstanding the laudable policy of terminating officers who drink alcohol and drive department vehicles, that policy had not been publicized and Whitaker might not have known about |sthe policy. Therefore, the termination was reversed and the matter was remanded for imposition of a lesser punishment.

Chief Schleuter testified that in early 2008, he decided to terminate any officer who lied during an internal affairs investigation into officer misconduct. The chief acknowledged no written policy was distributed to the officers. Like the officer in Whitaker, swpra, there is no indication that Atchison or any other officer was informed of this policy change. The record showed that other Monroe officers who lied during investigations were disciplined but not terminated.

In Marsellus v. Department of Public Safety and Corrections, 2004-0860 (La.App. 1st Cir.9/23/05), 923 So.2d 656, the termination of a DPS employee was reversed because the court found that the firing was excessive discipline and not commensurate with the relative seriousness of the offense proven. A state employee for 17-18 years without previous discipline, Marsellus was observed sleeping on two occasions while on duty as a prison guard. He denied sleeping on one occasion and stated he might have nodded off on the other. The court observed that the discipline imposed must be based upon legal cause and commensurate with the offending behavior. The decision should not be modified unless it is arbitrary, capricious, or an abuse of discretion. The First Circuit found that DPS did not prove Marsellus was asleep on duty on two occasions, and the agency did not establish his conduct had a “real and substantial” detrimental effect on the efficient operation of the prison. After reviewing the character, content and weight of the evidence, the court found termination was |9excessive discipline, not commensurate with the offense actually proven. Therefore, the firing of Marsellus was found to be an abuse of discretion.

In Fascio v. Department of Police, 2008-1127 (La.App. 4th Cir.4/1/09), 9 So.3d 1029, the court upheld the imposition of discipline but reduced the period of suspension from 30 days to 12 days. In preparing for Hurricane Katrina, the police superintendent required all essential officers to report for duty and remain until relieved. He issued a mandate that only the superintendent himself could grant a furlough. In the aftermath of the hurricane, Officer Fascio was on duty with the K-9 unit and saw his daughter’s damaged home on television.

After informing his supervisor, he traveled to Slidell in his private car with his dog to check on his daughter. While there he obtained from his own home additional weapons and ammunition for his unit and returned to active duty approximately 12 to 13 hours after leaving. He received a disciplinary letter in which he was charged with one count of neglect of duty and given a 30-day suspension. Fascio filed a timely appeal with the Civil Service Commission, which denied his appeal.

Because the commission did not impose the penalty uniformly and because Fascio received the same punishment as an officer who left his/her post for a week, the court found the 30-day suspension arbitrary and excessive. In addition, the mechanical punishment scale did not take into | i0account the officer’s actions, any mitigating circumstances, or how his action may have impaired the public service.

Among the catalogue of complaints against Atchison were allegations that she was observed picking up her children up from school on April 30 and May 1, 2008, when she was on sick leave. Moreover, she was charged with being untruthful about the incidents when asked. However, the record showed she was not on sick leave on those dates. She notified her supervisor that she had been released April 29 to return to light-duty work. She offered to bring in the release and her supervisor informed her she was off the sick log and instructed her to bring the release when she reported for her next scheduled duty.

A reviewing court may not adjust a penalty simply because it disagrees with the punishment imposed. City of Shreveport v. Willis, 33,680 (La.App.2d Cir.8/25/00), 765 So.2d 1245. Atchison’s termination is set aside because we agree with the trial court that termination was “excessive discipline and is without question disproportionate to the sanctions received by similarly situated MPD officers.”

The sick leave policy regarding off-duty employment could be viewed as ambiguous and some of the charges against Atchison proved to be without merit. While the prohibition against lying during investigations could be discerned in the policies of the department, the zero tolerance followed by termination was a change in practice of which Atchison may |nnot have been aware. Moreover, Atchison had been formally commended a number of times during her employment and not been the subject of any previous disciplinary proceedings. No effort was made to warn her against violations or to rehabilitate her behavior prior to termination. Taken together, those factors make the termination clearly wrong and manifestly erroneous. Therefore, the termination is subject to this court’s adjustment to reflect the penalties imposed upon other similarly situated officers who lied during internal affairs investigations and were not terminated.

CONCLUSION

We agree with the Chief of Police and the Monroe Fire and Police Civil Service Board’s decision to impose discipline. To the extent that the judgment affirmed the action of the Monroe Fire and Police Civil Service Board’s finding of violations by Officer Kim Atchison, the judgment is affirmed.

That portion of the judgment affirming Atchison’s termination is set aside. The penalty is amended to the maximum provided by La. R.S. 33:2500(B), 90 days without pay or benefits. We render the judgment awarding Atchison full pay and benefits from the date of her reinstatement plus legal interest until paid. Costs of the appeal in the amount of $121.50 are assessed against the Monroe Fire and Police Civil Service Board.

The judgment is AMENDED AND, AS AMENDED, AFFIRMED AND RENDERED.

APPENDIX

JjSTATE OF LOUISIANA * * PARISH OF OUACHITA * * 4TH JUDICIAL DISTRICT COURT

APPEAL OF KIM ATCHISON VERSUS MONROE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.

NO. 08-3048.

FILED: _

BY: _

DEPUTY CLERK

RULING REGARDING CIVIL SERVICE APPEAL

This is the second time this proceeding has been before this Court for review. The case was remanded for a new hearing before the Monroe Municipal Fire and Police Civil Service Board to ensure the plaintiff, Kim Atkinson, received due process in the form of an opportunity to present a defense and to be effectively represented by Counsel before the Board in its review of her termination from the Monroe Police Department. Following the second hearing, the Board again affirmed the appointing authority’s decision to terminate the plaintiff and this appeal ensued.

The Plaintiff, a nine-year veteran officer of the Monroe Police Department, was terminated for alleged violations of the sick leave policy, the off-duty log policy, and for allegedly being untruthful during an internal investigation regarding these issues. It is undisputed that, during her nine-year tenure, Officer Atchison had never been the subject of any prior disciplinary action and, in fact, had received numerous letters of commendation. These circumstances notwithstanding, her termination was ordered rather than the imposition of any lesser corrective discipline.

The essence of the Plaintiffs argument is that the body of evidence presented by this Record is legally insufficient to provide an appropriate basis for the Board to uphold the appointing authority’s decision to terminate her. As a corollary, the Plaintiff points out the disparate treatment of Officer Atchison when compared to other officers found guilty of the same type of violations.

The parties are in agreement concerning the appropriate standard of review to be exercised by this Court in this case. This Court is limited to a determination of whether the decision made by the Board was made in good faith and for cause under the ^provisions of the Civil Service Law. Under our jurisprudence, this matter is not a trial de novo and this Court’s review is confined to the Record and evidence presented to the Board in reviewing whether or not that body of evidence provides a sufficient basis for the Board’s decision. Only if the Record reveals a lack of sufficient evidence to support the decision of the Board, or an abuse of the Board’s discretion, can the decision of the Board be overturned by this Court. In other words, this Court reviews the Board’s decision to determine whether, on the basis of the evidence presented by the Record, the Board’s actions and decisions can be deemed arbitrary and capricious. Furthermore, this reviewing Court cannot substitute its judgment for that of the Board or overrule the Board’s decision merely because it disagrees with the penalty imposed.

In this case, the body of evidence presented for the Board’s review, as reflected by the Record presented to this Court, contains conflicting testimony regarding the allegations of misconduct. However, these conflicts in testimony do not necessarily render that body of evidence legally insufficient under the standard of review of the Board’s decision this Court is obliged to apply. See Linton v. Bossier City Mun. Fire and Police Civil Service Bd., 428 So.2d 515 (La.App. 2nd Cir.1983).

Based upon a review of the body of evidence presented for the Board’s consideration, this Court cannot conclude that the Board acted in an arbitrary and capricious manner in violation of the statute. Although containing conflicting testimony, that same body of evidence provides a sufficient basis to preclude this Court from finding that the Board failed to act in good faith and for cause under the provisions of the applicable statutes. In short, this Court cannot say that the Board acted irrationally or in an arbitrary and capricious manner in reaching its decision.

The body of evidence presented to the Board for its review is such that this Court cannot conclude that the Board acted irrationally or without a sufficient evidentiary basis in finding that the plaintiff violated provisions of Monroe Police Department policy and was subject to being disciplined for those violations. This Court, under the required standard of review, cannot conclude those factual findings are clearly wrong or manifestly erroneous. Likewise, this Court cannot conclude based upon the evidence [¡¡presented for the Board’s review that those factual findings were made in anything other than good faith and for cause under the provisions of the Civil Service Law.

Since, when judged by the appropriate standard of review, the Plaintiff was properly subject to being disciplined for her actions, the remaining argument to be addressed is whether or not the penalty imposed in this instance is too severe. In support of this contention, the Plaintiff directs this Court’s attention to other officers found guilty of the same or violations of a similar nature who received far lesser disciplines than termination. Citing instances in which other officers received brief suspensions or transfers to other assignments, the Plaintiff makes a compelling case that her punishment is disproportionately severe.

As noted earlier, this reviewing Court, however, cannot overrule the decision of the Board merely because it disagrees with the penalty imposed in a particular case. Furthermore, the jurisprudence cited by the parties recognizes that no requirement exists for identical or even substantially similar treatment of offending officers for the same or similar violations.

As correctly pointed out in brief, when the challenged action of the appointing authority is disciplinary in nature, the authority must show to the Board that the disciplined employee’s conduct violated the standard set forth in LSA-R.S. 33:2500, that the disciplined employee’s conduct impaired the efficient and orderly operation of public service, and that the appointing authority had a rational basis for disciplining the employee and, therefore, did not act arbitrarily or capriciously.

Having found, based upon the required standard of review this Court is obliged to apply, that it cannot be said the plaintiff was improperly subjected to discipline, the punishment imposed as a consequence of that finding is not properly within this Court’s ambit of authority.

|4For these reasons, the action of the Board in upholding the decision or action of the appointing authority is affirmed, with all costs apportioned equally among the parties.

The Court will sign an appropriate judgment in accord with these reasons which has been approved as to form by Counsel within 20 days immediately following the filing and service of these reasons upon all Counsel of Record.

DONE and SIGNED in Monroe, Louisiana, this 19 day of May, 2010.

JUDGE WILSON RAMBO

FOURTH JUDICIAL DISTRICT COURT

SECTION “2”

PLEASE MAIL COPIES TO:

Michael L. DuBos

Attorney at Law

Post Office Box 14106

Monroe, Louisiana 71207-4106

Elmer Noah

Attorney at Law

1900 North Eighteenth Street, Suite 302

Monroe, Louisiana 71201

Nanci S. Summersgill

Monroe City Attorney

Post Office Box 123

Monroe, Louisiana 71210-0123

      . Department policy and procedure required officers working off-duty jobs to notify the department of their location for safety considerations.

      . Chief Schleuter testified that in his 30 years with the MPD, he had never known any officer to have violated as many policies as many times as the plaintiff did.

      . Any absence up to 7 days was a 30-day suspension; a 7- to 14-day absence was a longer suspension for each additional day of absence; and absences of over 14 days resulted in termination.

      . MPD sick policy requires an officer on sick leave to remain at home except to visit a doctor, clinic or hospital for treatment, to buy medicine, to buy food, to attend church, to vote, to attend a friend or relative funeral, and to engage in any limited activity specifically prescribed by the attending physician, Curiously, taking or retrieving one’s children from school is not included in the list of permissible exceptions to the policy.

      . The briefs submitted by the parties in this proceeding thoroughly summarize the evidence presented for the Board’s consideration. Such is the case particularly with respect to the brief filed on behalf of the Plaintiff. Consequently, the Court will not belabor unduly the details set forth in those pleadings in the context of these reasons for judgment.

      . The briefs are replete with appropriate citations regarding this standard of review and are omitted from these reasons.

      . Again the citations are omitted but are replete in the briefs provided the Court. The brief on behalf of the City of Monroe succinctly summarizes the policy considerations which allow for a finding, based on the evidence presented to the Board, that the Plaintiffs action may reasonably be characterized as an impairment of the efficient and orderly operation of public service and require no detailed discussion herein.

      . The Court agrees with the Plaintiffs contention that her termination is excessive discipline and is without question disproportionate to the sanctions received by other similarly situated MPD officers. However, no authority has been presented which would allow this Court to modify the discipline imposed to a lesser one corrective in nature thereby vacating the Plaintiff's termination from employment in a case in which the Board’s actions have otherwise survived review.


author: PARRO, J.

text:
    Calvin EVERETT v. BATON ROUGE STUDENT HOUSING, L.L.C.; Century Campus Housing Management, L.P. d/b/a Campus Living Villages; Admiral Insurance Company.
    No. 2010 CA 0856.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Edward Moses, Jr., Baton Rouge, LA, for Plaintiff-Appellant Calvin Everett.
    Michael P. Mentz, Brad D. Ferrand, Hailey, McNamara, Hall, Larmann & Pa-pale, L.L.P., Metairie, LA, for Defendant-Appellee Baton Rouge Student Housing, L.L.C.
    Brent M. Maggio, Allen & Gooch, Me-tairie, LA, for Defendant-Appellee Century Campus Housing Management, L.P., d/b/a Campus Living Villages.
    Melvin A. Eiden, Lafayette, LA, for Defendant-Appellee Admiral Insurance Company.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

| gCalvin Everett appeals a judgment granting motions for summary judgment filed by the defendants, Baton Rouge Student Housing, L.L.C., Century Campus Housing Management, L.P., d/b/a Campus Living Villages, and Admiral Insurance Company, and dismissing his lawsuit. For the following reasons, we dismiss the appeal.

RULE TO SHOW CAUSE

On August 31, 2010, this court, ex pro-prio motu, issued an order for the parties to show cause by briefs on or before September 15, 2010, whether the appeal should be dismissed as untimely. All parties timely filed briefs concerning this issue. The rule to show cause was referred to the panel to which the appeal was assigned. Everett v. Baton Rouge Student Housing, L.L.C., 10-0856 (La.App. 1st Cir.12/3/10) (unpublished writ action). Accordingly, we shall address this motion in order to determine whether the appeal should be dismissed.

The record shows the following information. On April 24, 2009, Judge Todd W. Hernandez signed a judgment granting the motions for summary judgment filed by all defendants in this matter and dismissing Everett’s lawsuit, with prejudice, at his costs. A certificate at the bottom of the judgment, signed by the deputy clerk of court, states:

I hereby certify that on this day a notice of the above judgment was mailed by me, with sufficient postage affixed, to: Michael Mentz, Melvin Eiden, Brent Maggio, Edward Moses, Jeff Valliere. Done and signed on April 30, 2009.

Louisiana Code of Civil Procedure article 1974 provides that “[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay ... commences to run on the day after the clerk has mailed ... the notice of judgment as required by Article 1913.” April 30, 2009, fell on a Thursday. Counting from the following day, Friday, May 1, 2009, and excluding the weekends, which are legal holidays, the seventh day was May 11, 2009. Everett filed his motion for new trial on May 18, 2009. This motion was untimely.

According to LSA-C.C.P. art. 2087(A)(1), a devolutive appeal must be filed within | Ssixty days of the expiration of the delay for applying for a new trial, if no application has been filed timely. Since Everett’s motion for a new trial was untimely, the time for filing a devolutive appeal in this case expired July 10, 2009, which was the last day “within” sixty days after May 11, 2009. However, Everett did not file a devolutive appeal; he filed an application for supervisory writs on September 15, 2009. This court denied the writ with an order, stating:

WRIT DENIED WITH ORDER. The April 29, 2009 judgment granting defendants’ motions for summary judgment and dismissing plaintiffs suit with prejudice is a final, appealable judgment. Therefore, it is hereby ordered that this case be remanded to the district court with instructions to grant relator an appeal pursuant to his September 15, 2009 pleading notifying the court of relator’s intention to seek review of the denial of his motion for new trial. See In re Howard, 541 So.2d 195 (La.1989). However, we note that there is no order for appeal. Therefore, in the event relator seeks to appeal the judgment, he shall submit an order for appeal to the district court within fourteen days of this Court’s order. A copy of this Court’s action is to be included in the appellate record.

Everett v. Baton Rouge Student Housing, L.L.C., 10-0095 (La.App. 1st Cir.3/15/10) (unpublished writ action). Everett then filed a motion and order for appeal in the district court on March 31, 2010, and the order permitting his appeal was signed on April 6, 2010.

When an application for writs is sought, further proceedings may be stayed at the trial court’s discretion. Any request for a stay of proceedings should be presented first to the trial court. The filing of, or the granting of, a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise. Rule 4-4(A), Uniform Rules of Louisiana Courts of Appeal. The record in this case does not show that a request for a stay in connection with the writ application was presented to the trial court or this court, or that a stay was granted by either court. Therefore, the delay for filing for a devolutive appeal was not suspended, interrupted, or stayed by the filing of Everett’s application for supervisory writs. Accordingly, neither the filing of his application for supervisory writs on September 15, 2009, or the filing of a motion and order for appeal on March 81, 2010, was timely.

An appeal is taken by obtaining an order therefor, within the delay allowed, |/rom the court which rendered the judgment. LSA-C.C.P. art. 2121. The appeal delays found in LSA-C.C.P. art. 2087 are not prescriptive periods that are subject to interruption; these time limits are jurisdictional. An appellant’s failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. See Jim & Lu Enterprises, Inc. v. Alcoholic Beverage Control Bd. for the City of Baton Rouge and East Baton Rouge Parish, 99-2907 (La.App. 1st Cir.12/22/00), 778 So.2d 75, 78, citing Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991). An application for new trial does not interrupt the delay for applying for a new trial or the delays for appealing unless the application is timely. Carona v. Webster, 270 So.2d 609, 611 (La.App. 1st Cir.1972); see also Main Electronics, Inc. v. Toddler Academy, Inc., 04-1348 (La.App. 5th Cir.3/1/05), 900 So.2d 103, 105-06, writ denied, 05-0829 (La.5/13/05), 902 So.2d 1025.

A court’s lack of jurisdiction can be noticed by the court on its own motion at any time. LSA-C.C.P. art. 2162; see Strickland v. Layrisson, 96-1280 (La.App. 1st Cir.6/20/97), 696 So.2d 621, 624, writ denied, 97-1940 (La.11/14/97), 704 So.2d 228. In this case, because of the lack of a timely motion for new trial, the delays for filing a motion and order of appeal were not interrupted, and the appeal was not timely filed. Therefore, we find that this court has no jurisdiction over the appeal of the April 24, 2009 judgment.

CONCLUSION

For the above reasons, the appeal of the April 24, 2009 judgment is dismissed, at Calvin Everett’s cost.

APPEAL DISMISSED.

GUIDRY, J., concurs.

      . Edward Moses was Everett’s attorney of record.

      . Despite the untimely application, the court heard the motion for new trial on August 24, 2009, and denied the motion. A judgment denying the motion for new trial was signed November 12, 2009.

      . We note that when this court denied Everett’s application for supervisory writs on March 15, 2010, and remanded with instructions to grant Everett an appeal pursuant to his September 15, 2009 pleading, there was no determination made as to whether the motion for new trial had been timely filed. Since there had been no such determination, on December 3, 2010, this court referred to this panel the rule to show cause why the appeal should not be dismissed.

      . However, Paragraph E of Article 2087 provides a specific exception for situations in which a case is removed to a federal court. This exception is clearly not applicable to this case.