author: PAUL A. BONIN, Judge.

text:
    John DOE v. LOUISIANA BOARD OF ETHICS. Jane Doe v. Louisiana Board of Ethics.
    Nos. 2012-CA-1169, 2012-CA-1170.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.

      Allen Usry, Usry, Weeks & Matthews, Kyle D. Schonekas, Joelle F. Evans, William P. Gibbens, Schonekas Evans McGoey & McEachin, L.L.C., Kara Hadican Samu-els, Ravi K. Sangisetty, Sangisetty and Samuels, New Orleans, LA, E. Wade Shows, Grant J. Guillot, Shows, Cali & Walsh, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellees.
    Kathleen M. Allen, Aaron D. Brooks, Louisiana Board of Ethics, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

| ,The Board of Ethics in its capacity as the Supervisory Committee on Campaign Finance Disclosure authorized a confidential investigation into whether certain persons or entities were only nominal contributors to a political action committee that in turn had made substantial financial contributions to the campaign expenses of a particular candidate for public office. Based upon a signed, yet unsworn, complaint that referenced a specific campaign finance report of the PAC, and a brief reference to publicly available information from the Louisiana Secretary of State’s commercial database, the Board sought to depose, and secure documents via the issuance of subpoenas duces tecum, to certain persons in Orleans Parish. The Board suspected that these persons may have been the true source of the funds, which were reported by the PAC as the donations of the nominal contributors. The Orleans Parish residents filed motions for protective orders to quash each of the deposition notices and the accompanying subpoenas.

The prospective deponents, John Doe and Jane Doe, successfully argued to the district court that the information sought by the Board was also the subject of |2an Order in a records-production matter that had been stayed by the First Circuit Court of Appeal. The district court took no action pending a definitive resolution of the matter by the First Circuit and ultimately the Supreme Court of Louisiana. After the stay was lifted and the Order in the records-production matter became ex-ecutory, the proposed deponents in this matter argued that the district court should quash the deposition notices and subpoenas because the time period for the Board to institute legal proceedings in the matter had expired. The district court, subsequently, granted the protective orders. In its written reasons, the district court accepted the pertinent prescriptive dates suggested by the Board’s counsel and concluded that any action by the Board to penalize the violation it was investigating had prescribed.

We have reviewed the ruling granting the protective orders under an abuse-of-discretion standard. See, e.g., Whitt v. McBride, 94-896, p. 6 (La.App. 3 Cir. 3/1/95), 651 So.2d 427, 430 (review of the quashal of subpoena duces tecum under La. C.C.P. art. 1354 A is made pursuant to an abuse-of-discretion standard); cf. Mary Moe v. L.L.C. v. Louisiana Bd. of Ethics, 03-2220, pp. 9-10 (La.4/14/04), 875 So.2d 22, 29 (review of the issuance of a permanent injunction, granted under a prima facie showing for preliminary injunction, is made pursuant to the de novo standard). The abuserof-diseretion standard is highly deferential, but a district court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); see also United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 2419, 101 L.Ed.2d 297 (1988) (noting that discretionary choices are not left to a court’s inclination, but to its judgment, which is guided by sound legal principles.)

The Board argues that the district court’s granting of the protective order was based upon an erroneous interpretation of the prescriptive period applicable to the institution of enforcement actions arising from its investigations. The Board also argues that the correct prescriptive period is three years and not the one-year period identified by the trial judge in its reasons for judgment. As we explain in greater detail below, we find that the district court’s ruling was not based on an erroneous view of the law and we ultimately find that it did not abuse its discretion when it granted the protective order set this time. Our conclusion in this matter is premised on the observation that the statute containing the applicable prescriptive period is ambiguous, which constrains us to strictly construe the statutory provisions relied upon by the Board because any enforcement actions by the Board against the Does would be penal in nature.

I

The Board functions as the Supervisory Committee on Campaign Finance Disclosure and its members constitute the Supervisory Committee. See La. R.S. 18:1511.1 A. As such, it shall “function as the supervisory committee to Radminister and enforce the provisions of this Chapter [La. R.S. 18:1481 — La. R.S. 18:1555, i.e., the Campaign Finance Disclosure Act] and the rules, regulations, and orders issued hereunder.” La. R.S. 18:1511.1 A. The Board “may adopt and promulgate rules and regulations in accordance with the Administrative Procedure Act necessary to effectuate the provisions and purposes of this Chapter.” La. R.S. 18:1511.2 A. The Board is granted explicit authority to provide by rule for “investigations and proceedings pursuant to this Chapter. La. R.S. 18:1511.2 A(1). Importantly, the Legislature has explicitly granted the Board rule-making authority to both “[c]larify a provision of this Chapter,” and to “[djefine a term used in this Chapter.” La. R.S. 18:1511.2 A(2) and (3).

The Board may investigate any apparent or alleged violation of the Campaign Finance Disclosure Act. See La. R.S. 18:1511.4 A. When, as here, the complaint to the Board is unsworn, an investigation may only be initiated by the Board “when, as a result of its review of reports, other documents or information, filed under the provisions of [the Act], it determines that there is reason to believe a violation of [the Act] has occurred,” and then only by a two-thirds vote of the Board. Id. The Board’s authority to investigate a violation extends to the examination and auditing of records and reports which are required to be maintained or filed under the Act’s provisions. See La. R.S. 18:1511.4 B. The Board’s investigative authority also affords it the power “to hold hearings, to subpoena witnesses, administer oaths, compel the production of books, records, | sand papers, public and private, require the submission under oath of written reports or answers to questions” as well as to “do all that is necessary to effect the provisions” of the Act. La. R.S. 18:1511.4 C. The Board may petition a district court to compel compliance with its subpoena or order in the event of a refusal, and the resulting court order may be punished as a contempt of court. See La. R.S. 18:1511.4 D. Nevertheless, an affected party, which is defined broadly to include “any person whose books, records, papers, or other documents are the subject of any subpoena,” may, upon a showing of good cause, move the district court within the jurisdiction of which any inquiry is being conducted to make “any order which justice requires to protect such person from annoyance, embarrassment, oppression, or undue burden or expense.” La. R.S. 18:1511.4 C(2). The district court is empowered to remedy an improper subpoena by ordering one, or more, of the following:

1) that the inquiry not be had;
2) that the inquiry may be had only upon specified terms and conditions including a designation of the time and place;
3) that the inquiry shall be conducted by a method other than selected by the supervisory committee;
4) that certain matters not be inquired into or that the scope of the inquiry be limited to certain matters;
5) that the inquiry be conducted with no one present except persons designated by the court.

Id.

Complaints, reviews, and all investigations and proceedings of the Board “shall be kept strictly confidential until such time that action with which [the [r,Board] or the district attorney has proceeded, ... the prescriptive period has elapsed, or the matter is otherwise finally disposed of.” See La. R.S. 18:1511.8 A. But, the Board may divulge that a review or investigation was made or a complaint received with regard to a person or committee, and, after investigation, no substantial reason was found to believe that the Act was violated. Id.

“When the results of the investigation by [the Board] indicate that a violation of [the Act] has occurred which is subject to civil penalties, [the Board] is authorized to file civil proceedings to collect the civil penalties provided in R.S. 18:1505.5.” See La. R.S. 18:1511.5 A(l) (emphasis added). The civil enforcement action or proceeding “shall be by rule to show cause and shall be conducted pursuant to the relevant provisions of the Louisiana Code of Civil Procedure.” See La. R.S. 18:1511.5 A(3). An enforcement action brought by the Board is, therefore, a summary proceeding. See La. C.C.P. arts. 2592(12) and 2593. Summary proceedings are to be “conducted with rapidity, within the delays allowed by the court, and without citation and observance of all the formalities required by an ordinary proceeding.” La. C.C.P. art. 2591. A copy of the rule to show cause and of the order assigning the date and hour of the trial of the rule shall be served on the defendant. See La. C.C.P. art. 2594. The trial of a summary matter is by preference over ordinary proceedings and is without a jury. See La. C.C.P. art. 2595 and La. R.S. 18:1511.11 A. Nevertheless, prior to using the |7accounts or records gathered during the confidential investigation at the trial, the district court shall make an in camera determination of whether the accounts or records are relevant and material before they may be introduced into evidence without further restriction. See La. R.S. 18:1511.8 C. The district court determines the appropriate penalty for the violation in the event it concludes that the Board has met its burden of proof. See La. R.S. 18:1511.5 B. An appeal lies from the assessment of civil penalties. See La. R.S. 18:1511.5 C. After becoming final, the judgment is executory and it may be collected in the same manner as any other money judgment. See La. R.S. 18:1511.5 D. The proceeds of the penalty are paid directly to the state treasurer. Id.

II

An action for the violation of the Campaign Finance Disclosure Act-the rule to show cause brought pursuant to La. R.S. 18:1511.5 A(3) — “must be commenced before three years have elapsed from the date of the violation or, if the violation is contained in a report, before one year has elapsed from filing of the relevant report.” See La. R.S. 18:1511.11 B (emphasis added). The Board argues that because the violation under investigation was not “contained in a report” the three-year prescriptive period controls. The prospective deponents argue that the initiating complaint referenced a specific campaign finance disclosure report by the PAC, which disclosed four specified contributors, as well as a specified candidate report as the basis for the complaint. The prospective deponents further correctly note that no rule to show cause was filed, i.e. no enforcement action was | ^commenced, within one year of the filing of the underlying PAC report and, thus, the prescriptive period of one year controls because the violation was “contained in a report.”

The Board contends that it is investigating the prospective deponents, John Doe and Jane Doe, for suspicion that they violated the provisions of La. R.S. 18:1505.2 A(l), which provides that “[n]o person shall give, furnish, or contribute monies to or in support of a candidate or to any political committee, through or in the name of another, directly or indirectly.” The individual subpoenas that were directed to John Doe and Jane Doe, who are related by consanguinity, seek the records of their financial transactions with twenty named or identifiable persons or entities in addition to each other. The subpoenas classify these persons and entities as the “Doe-Entities.” Four of the Doe Entities were identified in the initial complaint as suspicious contributors, and their contributions nearly correlate in the aggregate amount to a specific, identified expenditure on the same candidate’s report as the one specified in the initial complaint. Notably, both subpoenas sought materials from the prospective deponents concerning that single expenditure showing on the candidate’s financial disclosure report. The Board concedes that its suspicion is aroused as to the source of the funds for the four entities whose aggregate contributions are reported in the PAC’s financial disclosure report of contributors, which, when aggregated, correlate to the specific expenditure reported in the candidate’s financial disclosure report.

|aIf John Doe or Jane Doe did give, furnish, or contribute monies, whether directly or indirectly, to the PAC “in the name of another,” then they “shall be assessed a penalty.” La. R.S. 18:1505.2 A(2). If the violation was “unknowing,” then the penalty shall be an amount equal to the contribution plus ten percent. See La. R.S. 18:1505.2 A(2)(a). If the violation “could have been avoided through the exercise of due diligence,” then the penalty shall be an amount equal to twice the amount of the contribution. See La. R.S. 18:1505.2 A(2)(b). Here, we consider it sufficient to note that either penalty would be considerable.

But, more importantly and to the point for our purposes, viewing the provisions of the Campaign Finance Disclosure Act related to the institution of actions seeking monetary penalties, we must conclude that such provisions when ambiguous or susceptible to more than one reasonable meaning must be construed to the benefit of the putative violator. Given this conclusion, we find, for the reasons discussed below, that the district court did not abuse its discretion when it quashed the subpoenas pursuant to La. R.S. 18:1511.4 C(2) because their enforcement under the present circumstances would have been oppressive and unduly burdensome.

Ill

The Does argued successfully to the district court that the Board’s subpoenas should be quashed because any potential enforcement action for civil penalties that might flow from the Board’s investigation into the Does actions has prescribed. Thus, the Board contends that the district court’s ruling quashing its subpoenas is Imlegally erroneous because it was based on a misreading of La. R.S. 18:1511.11 B, which, as noted, provides that an action for a violation of the Campaign Finance Disclosure Act “must be commenced before three years have elapsed from the date of the violation or, if the violation is contained in a report, before one year has elapsed from filing of the relevant report.” Having reviewed the matter thoroughly we cannot say that the district court’s interpretation is legally erroneous or its subsequent ruling an abuse of discretion.

We note at the outset of our discussion that there has been no suggestion that the Board is suspicious of, or seeking to. investigate, any direct or indirect giving, furnishing, or contribution of monies through, or in the name of, another person in support of a candidate or PAC which has not already been reported. In other words, the Board in this case was investigating whether certain contributions that were named in the PAC’s disclosure report and ascribed to named contributors were actually furnished by someone other than the named contributors. Neither the initial complaint nor the Board’s authorization for the investigation was directed at unreported contributions; the contributions under investigation were reported but they were allegedly reported by nomirial contributors only.

The Board argues, however, that it is the violation itself which must be self-evident on the face of the report in order to apply the “contained in the report” one-year prescriptive period. By way of illustration, the Board points to the circumstances set out in State Bd. of Ethics v. Ourso, 02-1978 (La.4/9/03), 842 So.2d 346. There, a candidate disclosed loans on his campaign finance report in | n excess of the contribution limits established in La. R.S. 18:1505.2 H. Ourso, 92-1978, p. 1, 842 So.2d at 347. The Supreme Court noted, in dicta, that the one-year prescriptive period applied “because the alleged violations, the receipt of loans in excess of the contribution limits, were disclosed in the reports filed with the Board.” Ourso, 02-1978, p. 4, 842 So.2d at 348. It is clear, however, from the Supreme Court’s opinion that the issue in Ourso was not the construal of the phrase “contained in the report,” but whether the one-year period contained within the statute was prescriptive or peremptive, and thus subject to waiver by the candidate under investigation. Ourso, 02-1978, pp. 9-10, 842 So.2d at 352. Ourso, therefore, affords but slight insight into the issue currently set before this Court.

Nevertheless, we acknowledge that the Board’s interpretation of the phrase “contained in the report” is a reasonable reading of the term. We must also acknowledge, however, that the Board’s reading of the term is not the only reasonable meaning attributable to La. R.S. 18:1511.11 B. Indeed, it is equally reasonable to read the statute as did the district court below because the suspected violations that the Board seeks to investigate via the issuance of subpoenas are clearly contained in the PAC’s report. We also recognize that the Board is empowered, by virtue of La. R.S. 18:1511.2 A(2) and (3), to both clarify and define the various provisions found in the Campaign Finance Disclosure Act, but that it has not done so with respect to any phrase contained in La.' R.S. 18:1511.11 hi>B. Our review of the statute, therefore, convinces us that it is ambiguous, and that we must construe this ambiguity in favor of the Does.

It is axiomatic that the starting point for the interpretation of any statute is the language of the statute itself. See Dejoie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826. When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. See La. Civil Code. art. 9; La. R.S. 1:4; Dejoie, supra. Where a statute is ambiguous and susceptible of two constructions, however, the courts will give that construction to the statute which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences. See Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La.1980). Further, when the language of a law is susceptible of different meanings it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examination of the context in which they occur and the text of the law as a whole. See Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So.2d 1373.

Thus, in construing the phrase “contained in a report” so as to determine which prescriptive period is controlling, we observe that the statute is penal in nature. Specifically, La. R.S. 18:1511.11 B is situated in Part VI, of Chapter 11 concerning election campaign finance, of Title 18, which contains Louisiana’s | ^election code. Part VI is subtitled “Enforcement,” and, as previously discussed, sets out the enforcement mechanisms whereby the Board is empowered to investigate campaign finance violations, institute collection proceedings, and secure the imposition of penalties for violations of Louisiana’s campaign finance laws. Therefore, La. R.S. 18:1511.11 B is penal as applied here because it is situated within that Part of Louisiana’s election finance law that is dedicated to the enforcement of civil prohibitions and the collection of civil penalties.

Because of its penal nature, La. R.S. 18:1511.11 B must be construed in favor of the Does. Louisiana jurisprudence has long held that penal laws are strictly construed, and that any ambiguity in the language found within such statutes must be resolved with lenity and in favor of the individual subject to the penalty. State v. Anders, 01-0556, p. 5 (La.6/21/02), 820 So.2d 513, 516. The rule of lenity posits that “courts should not construe penal statutes as extending powers not authorized by the letter of the law even if such powers would be arguably within its spirit.” Sales 360, L.L.C. v. Louisiana Motor Vehicle Com’n, 07-432, p. 10 (La.App. 5 Cir. 12/11/07), 976 So.2d 188, 194. The rule of lenity, moreover, applies not only to the substantive ambit of criminal laws and civil penal statutes, but also to the penalties imposed by those laws. State v. Piazza, 596 So.2d 817, 820 (La.1992). Additionally, the rule of lenity requires that “where there is any doubt as to the interpretation of a statute upon which a prosecution is based, doubt must be resolved in favor of the accused.” State v. Small, 11-2796, p. 19 (La.10/16/12), 100 So.3d 797, 811. This principal applies to both criminal 114laws and civil statutes of a penal nature. See, for example, Guillory v. Lee, 09-0075, p. 37 (La.6/26/09), 16 So.3d 1104, 1130, which discussed the principle in the context of civil penalties imposed on insurers which were found to have engaged in bad faith settlement practices. Additionally, the rule of lenity has been applied in the area of administrative law. See, Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Commission, 403 So.2d 13 (La.1981).

Because La. R.S. 18:1511.11 B is both penal in nature and ambiguous, we conclude that the district court correctly interpreted it to mean that its one-year period applies to the facts of this case because the suspected violations that the Board seeks to investigate are contained in the PAC’s report. The subpoenas, therefore, are oppressive and unduly burdensome on the Does because any potential civil enforcement action that might arise out of the information secured via the Does’ response to the subpoenas has prescribed. The district court, therefore, did not abuse its discretion afforded it by La. R.S. 18:1511.4 C(2) in quashing the Board’s subpoenas as moot. Lastly, we note that our decision with respect to the matter before us does not prevent the Board from initiating further investigations, or attempting further discovery, into the Does’ actions provided such investigations are timely and based on evidence not contained within the specific reports that formed the basis for the investigation at issue.

11fiDECREE

Accordingly, we affirm the district court’s granting of the motions to quash that were filed by John Doe and Jane Doe.

AFFIRMED

LANDRIEU, J., concurs in the result.

      . The respective quashal actions were subsequently consolidated.

      . Because of the secrecy and confidentiality required until the finality of this judgment, we use the pseudonyms employed by the parties. Likewise, we also decline to identify the specific PAC or specify filing dates so as to not inadvertently reveal or suggest confidential information. See La. R.S. 18:1511.8 A.

      .Although a district court's written reasons are nearly always helpful to an intermediate appellate court, we review judgments and not reasons. See Wooley v. Lucksinger, 09-0571, p. 77 (La.4/1/11), 61 So.3d 507, 572. We note in passing that the Board makes much over the district court’s identification of a specific date, which date was suggested to it by the Board's counsel, but which does not correspond with the one-year anniversary date that had already occurred.

      . Like the parties in their respective memo-randa, our references to the "Board” are short-hand for the Supervisory Committee.

      . Chapter 11 may be cited as the Campaign Finance Disclosure Act. See La. R.S. 18:1481.

      . There is a separate provision for criminal enforcement where the Board’s investigation indicates that the violation was "knowing, willful, and fraudulent” or "an intentional criminal violation” of the Act has occurred. See La. R.S. 18:1511.6. We are not concerned with this provision, which requires enforcement by a district attorney or the attorney general. Id.

      . The names of some of the other persons and entities included on the Doe-Entities list are also contained in the PAC’s report and the candidate's report.

      . The Supreme Court in Ourso concluded that the one-year period • set out in La. R.S. 18:1511.5 A(3) was prescriptive, and thus subject to waiver.

      . The Board also argues that prescription on any potential civil enforcement action brought in Orleans Parish was suspended by the doctrine of contra non valentem pending resolution of the matter which was subject to stay orders issued by the First Circuit and the Supreme Court. We do not find this argument persuasive. First, the stays issued by the First Circuit and the Supreme Court applied to subpoenas issued in another jurisdiction. The stays did not prevent the Board from further investigating this matter or filing a civil enforcement action. Second, it has been held that court issued stays do not suspend prescription, prevent the filing of a lawsuit, or implicate the doctrine of contra non valentem. See White v. Haydel, 593 So.2d 421 (La.App. 1 Cir.1991), and Castaneda v. La. Ins. Guaranty Assoc., 95-29 (La.App. 5 Cir. 5/30/95), 657 So.2d 338.


source: Caselaw Access Project

author: JAMES F. McKAY, III, Chief Judge.

license: Public Domain

text:
    In re Public Records Request of Catherine BECKETT v. Ronal SERPAS and the City of New Orleans.
    No. 2012-CA-1349.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Brett J. Prendergast, New Orleans, LA, for Plaintiff/Appellant.
    Kimlin S. Lee, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY, III, Chief Judge.

h Catherine Beckett (“Beckett”) appeals the trial court’s judgment, which denied, in part, her request for public records pursuant to a petition for writ of mandamus against Roñal Serpas and the City of New Orleans (collectively, “City”). For the reasons set forth herein, we affirm.

Pursuant to the Louisiana Public Records Act, La. R.S. 44:31 et seq., Beckett requested the following documents on November 23, 2011:

1) all documents generated as a result of the Public Integrity Bureau’s [PIB] investigation of the allegations of misconduct made against me [Beckett] under PIB Control No. 2010-1589-R, including, but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigation;
2) all documents generated as a result of any Public Integrity Bureau’s investigation conducted within the last ten years of any allegations that any member of the New Orleans Police Department [violated] Rule 2, Paragraph 9 of the New Orleans Police Department Operations Manual, including, but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigation;
3) all documents generated as a result of any Public Integrity Bureau’s investigation conducted within the last ten years of any allegations that any member of the New Orleans Police Department [violated] Rule 4,. Paragraph 4(c)(1) of the New Orleans Police Department Operations Manual, including, but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigation;
|¾4) all documents generated as a result of any Public Integrity Bureau’s investigation conducted within the last ten years of any allegations that any member of the New Orleans Police Department [violated] Rule 5, Paragraph 10 of the New Orleans Police Department Operations Manual, including, but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigation;
5) all documents, including, but not limited to, notes, drafts, memorandum, comments, generated in connection with the drafting and/or promulgation of Rule 2, Paragraph 9, Rule 4, Paragraph 4(c)(1) and Rule 5, Paragraph 10 of the New Orleans Police Department Operations Manual; and
(6) any correspondence or e-mails exchanged between the New Orleans Police Department and the United States Attorney’s Office, the United States Department of Justice or the Federal Bureau of Investigation in December 2010 which made any reference to me [Beckett].

The City responded on December 16, 2011, asking Beckett to narrow her request. Beckett refused and filed a petition for writ of mandamus against the City pursuant to La. 44:35. The action also sought attorney’s fees, costs, and civil penalties as provided by the statute.

In February 2012, the City turned over the documents requested in item 1 (Beckett’s own PIB file). With respect to items 2-4, the City argued that the PIB files of other officers contained personal information and that the officers have a reasonable expectation of privacy in their PIB files. The City also argued that the requests in items 2-4 were overly burdensome because the PIB records are maintained by officer’s name rather than by violation or case description. Thus, the City asserted that it would have.to review every PIB file for the past ten years in order to identify the ones involving the specific rule violations sought by Beckett. With respect to | ¡¿terns 5 and 6, the City informed Beckett that it had no such documents in its custody,

A contradictory hearing was held on March 6, 2012. The matter was taken under advisement, and the trial court ordered the City to produce any quantifiable information it may have with regard to the requests made in items 2-4. In response, the City produced PIB statistical data (not the requested PIB files) setting forth officers’ names and the charges/allegations. Following a review of the documents, Beckett’s petition for writ of mandamus was granted in part and denied in part.

In reasons for judgment, the trial court stated that Beckett was only entitled to the documents related to her own PIB investigation (item 1), which were previously provided. The trial court denied Beckett’s other requests, reasoning that the PIB files contained private information of law enforcement officers, which outweighs any public interest that Beckett might have. Additionally, the requests were deemed overly burdensome because they were complex, demanding, and not separated in such a way to make tracking the information simpler. Attorney’s fees, costs and penalties were not awarded.

On appeal, Beckett argues that the trial court erred in finding that police officers have a privacy interest in PIB files and that such a privacy interest outweighs the interest of the public in having access to public records. Beckett further contends that the trial court erred in finding that the City was not obligated to make the public records available based on the burden of producing them. Finally, Beckett asserts that the trial court erredj^in failing to award attorney’s fees, costs, and civil penalties pursuant to La. R.S. 44:35(D) and (E). We find no merit in these assignments of error.

DISCUSSION

Article XII, Section 3 of the Louisiana Constitution provides that no person shall be denied the right to “examine public documents, except in cases established by law.” The legislature has codified this right in the Public Records Act, La. R.S. 44:1, et seq. La. R.S. 44:31 provides:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

The right of access to public records is a fundamental right guaranteed by La. Const, art. XII § 3, which must be liberally construed in favor of free and unrestricted access to the public records. Landis v. Moreau, 2000-1157, p. 4 (La.2/21/01), 779 So.2d 691, 694. As with the constitutional provision, the Public Records Act should be construed liberally, and any doubt must be resolved in favor of the right of access. Title Research Corp. v. Rausch, 450 So.2d 933, 937 (La.1984).

When a request for public records is at issue, the custodian or the individual claiming the privacy right must prove that there is a reasonable ^expectation of privacy against disclosure of the information to a person entitled to access to the public information. Cull v. Cadaro, 2010-1546, p. 6 (La.App. 4 Cir. 6/1/11), 68 So.3d 1161, 1168-1164 (citing Angelo Iafrate Construction, L.L.C. v. State ex rel. Department of Transportation and Development, 2003-0892, p. 6 (La.App. 1 Cir. 5/14/04), 879 So.2d 250, 255) (internal citations omitted). If, and only if, a reasonable expectation of privacy is found, the court must weigh or balance the public records disclosure interest against the privacy interest. Id. The balancing of these competing interests is done on a case-by-case basis given the particular facts and circumstances of each case that impact those interests. East Bank Consolidation Special Service Fire Protection Disk v. Crossen, 04-0838, pp. 6-7 (La.App. 5 Cir. 12/28/04), 892 So.2d 666, 670; Broderick v. State, Dept. of Environ., 2000-0156, pp. 4-5 (La.App. 1 Cir. 5/12/00), 761 So.2d 713, 715.

La. Const, of 1974, Art. I, § 5 expressly prohibits unreasonable invasions of privacy. The right to privacy in Louisiana has been described as the right to be let alone and to be free from unnecessary public scrutiny. Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979 (La.7/1/97), 696 So.2d 562, 566. The right to privacy is not absolute; it is qualified by the rights of others, and it is also limited by society’s right to be informed about legitimate subjects of public interest. Id. In ascertaining whether individuals have a reasonable expectation of privacy that is constitutionally protected, a court must determine not only whether the individual has an actual or subjective expectation of privacy, but whether that expectation is also of a type which society at large is prepared to |r,recognize as being reasonable. Angelo Iafrate Construction, supra, pp. 5-6, 879 So.2d at 255.

Beckett argues that the officers have no expectation of privacy in the records contained in their PIB files. However, a law enforcement officer’s reasonable expectation of privacy is embodied in La. R.S. 40:2532, which provides:

No person, agency, or department shall release to the news media, press or any other public information agency, a law enforcement officer’s home address, photograph, or any information that may be deemed otherwise confidential, without the express written consent of the law enforcement officer, with respect to an investigation of the law enforcement officer.

Beckett submits that La. R.S. 40:2532 does not create a privacy expectation so as to justify a refusal to produce the entire PIB file. In support, Beckett relies on City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., 2007-1088, 2007-1089 (La.App. 1 Cir. 10/10/08), 4 So.3d 807.

In City of Baton Rouge, a newspaper sought Internal Affairs Division (“IAD”) files of the Baton Rouge Police Department. The trial court determined that the IAD files were confidential under La. R.S. 40:2532 and therefore not subject to disclosure under the Public Records Act. The First Circuit Court reversed, finding that the police officers under investigation had no individual privacy interest in these files and recognized a strong public interest in disclosure. However, it should be noted that the court went on to conclude that the officers’ personal information was not subject to review. Specifically, the court stated:

... [T]he following information contained in the IAD files was properly deemed confidential pursuant to La. R.S. 40:2532: Impersonal information relative to the names, addresses, and identifying information of alleged victims, witnesses, and complainants, including the names of police officers who are complainants; 2) photographs of police officers or others; 3) any home addresses, home telephone numbers, social security numbers, and drivers’ license numbers; and 4) any medical information. Further, records pertaining to pending or reasonably anticipated criminal litigation or arrest records that have not resulted in a final judgment of conviction are expressly exempt pursuant to La. R.S. 44:3 A(l) and (4)(a). Accordingly, we find it is necessary for the IAD records to be redacted prior to their release. La. R.S. 44:32 B.

City of Baton Rouge, 2007-1088, 2007-1089, p. 22-23, 4 So.3d at 822.

Clearly, a law enforcement officer has a reasonable expectation of privacy as to certain personal information, ie., home address, telephone number, social security number, medical information, etc. Consequently, Beckett cannot be given unfettered review of the PIB files without the redaction of the officers’ private information contained therein.

La. R.S. 44:32 B provides that the custodian may separate the nonpublic record before making the public record available for examination. However, as the trial court correctly determined in the present case, the request for ten years of PIB files is overly broad, particularly in light of the fact that the'files are maintained by officer name and/or file number rather than by the alleged offense.

It is well established that the examination of records or requests for reproduction cannot be so burdensome as to interfere with the operation of the custodian’s constitutional and legal duties. Vandenweghe v. Parish of Jefferson, 11-52, p. 12 (La.App. 5 Cir. 5/24/11), 70 So.3d 51, 58, writ denied, 2011-1333 (La.9/30/11), 71 So.3d 289; Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 126. The jurisprudence further recognizes that any restriction or limitation imposed by the custodian places the | sburden on the custodian to justify the restriction or limitation. Id. Here, given the particular facts and circumstances of this case, ie., the volume of the records requested and the manner in which the files are categorized, the City has demonstrated that segregating ten years of PIB files would be unreasonably burdensome.

For the foregoing reasons, we find no error in the trial court’s partial denial of Beckett’s public records request. Furthermore, because the record contains no evidence that the City acted unreasonably or was arbitrary and capricious in handling the request for public records, we find no abuse of discretion on the part of the trial court in the denial of attorney’s fees, costs and penalties.

AFFIRMED.

      . La. R.S. 44:35 authorizes a mandamus proceeding when any person has been denied the right to inspect or copy a record under the provisions of the Public Records Law.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Norman PETE.
    No. 2012-KA-0378.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Powell Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

11 On March 4, 2004, the State charged Norman Pete with two counts of forcible rape, violations of La. R.S. 14:42.1, and one count of second degree kidnapping, a violation of La. R.S. 14:44.1. Pete pled not guilty at his arraignment on March 9, 2004. On April 21, 2004, the trial court found probable cause and denied Pete’s motion to suppress the identification.

On January 14, 2008, the trial court denied his motions to quash the bill of information. Pete pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the court’s denial of his motion to quash. On that same date, Pete waived any sentencing delays and was sentenced to serve twenty years at hard labor on each of the three counts, the first two years of each sentence to be served without benefit of parole, and with the sentences to run concurrently, and with credit for time served. The State filed a multiple bill charging Pete as a second offender based on a prior rape conviction. Pete pled guilty to the multiple bill on January 10, 2011. The court then vacated the original sentences and sentenced Pete under the multiple bill statute, La. R.S. 15:529.1, to twenty years at hard labor on all three counts, i.e. both counts of forcible rape and the count of second degree kidnapping, with the sentences to run concurrently and 12with credit for time served. On November 3, 2011, the trial court granted Pete’s motion for an out-of-time appeal.

At the motion hearing, Detective Joseph Goines, of the New Orleans Police Department sex crimes division, testified that on August 2, 2003, at around 6:30 in the morning, he was told to contact the Third District Cops Unit in, the St. Bernard Housing Development. He was advised that there was a sexual assault victim at the complex. As Det. Goines traveled to the complex, he was advised that the victim was being transported to Charity Hospital. Det. Goines then met the victim at Charity and spoke to her about her assault.

The victim told Det. Goines that she went to the Vibe Club on Esplanade Avenue near North Claiborne Avenue earlier that morning, sometime after midnight. The victim was dropped off at the club by a female friend, who was supposed to return to the club to pick her up between 4 a.m. and 4:30 a.m. While at the club, the club management handed the victim a long-stemmed yellow rose.

The victim left the club around 4 a.m. and looked for her friend. Her friend was not outside. The victim called her friend’s house, but her friend was not home. At that point, the victim noticed several men outside of the club, which made the victim feel unsafe. The victim decided to walk to the nearest bus stop and take the St. Bernard bus home.

While whiting outside, the defendant, who was unknown to the victim, drove up to the victim in a burgundy car. The defendant asked the victim if she was “dating.” The defendant then asked the victim where she was going, and she replied that she was going home. She told the defendant that she lived in the St. Bernard Housing Development, and she got into his car. The victim believed the defendant was taking her home, though she did not give him a specific address |3within the complex. Instead of taking her home, the defendant began speeding, before he stopped his vehicle along the Franklin Avenue overpass, at a dead end.

The victim pleaded with the defendant to take her home, but he pulled into the vacant area, indicating that he was going to turn around. Instead, however, he parked the vehicle. The victim opened the door to get out, and the defendant hit her in her chest in response. The defendant told her to close the door and to undress. The victim told Det. Goines that she was afraid of the defendant, so she complied with his orders, closed the car door, and undressed. The defendant undressed and reclined the victim’s seat, got on top of the victim, and vaginally raped her. The defendant then sat back in the driver’s seat and forced the victim to perform oral sex on him. Upon completion of this act, the defendant once again crawled over to the passenger side of the vehicle and vaginally raped the victim again. Throughout the ordeal, the victim told the defendant that she did not want to be there and that she wanted to go home. At the conclusion, the defendant ordered the victim to get dressed, and she complied. She then took the long-stemmed yellow rose she received while at the Vibe Club and dropped it out of the car window. The victim told Det. Goines that the reason she did not scream during the rapes was because there was a train passing at the time.

Thereafter, the defendant took the victim home to the St. Bernard Housing Complex. The victim got out of the vehicle, went inside the home where she had directed the defendant to take her, and called the police. The victim was then taken to Charity Hospital, where she underwent a sexual assault exam. The victim described to Det. Goines the area where she had been taken by the defendant and where she dropped the long-stemmed yellow rose. Det. Goines then went to the exact location the victim had described to him, walked around the area, and found |4a long-stemmed yellow rose. At that point, Det. Goines called the crime lab. A composite drawing of the defendant was subsequently made and distributed.

During that subsequent Mardi Gras season, on February 18, 2004, Det. Goines received a call from another officer, advising that the victim had pointed out her alleged perpetrator, the defendant. Apparently, the victim was in the 1700 block of First Street, when she observed a red vehicle carrying the defendant, whom the victim recognized as being her assailant. The defendant was subsequently arrested, and a search warrant was issued to collect DNA evidence from the defendant. At the time of the preliminary hearing, Det. Goines did not know the status of the DNA testing.

On cross-examination, Det. Goines testified that the victim told him that when the defendant first pulled up to her and asked her if she was “dating,” he then told her that she was dressed as a prostitute. In addition, Det. Goines testified that he did not see any visible signs of an altercation on the victim’s body.

After Det. Goines testified, the State called the victim to take the stand. Upon calling the victim to testify, it became clear to defense counsel that the victim had been sitting in the court room during Det. Goines’ testimony. Defense counsel complained to the judge about the fact that the victim was allowed to sit through Det. Goines’ testimony without first indicating to him that she was in the courtroom. Defense counsel then requested that the witnesses be sequestered for the remainder of the hearing.

The victim was later called to the stand. Her testimony corroborated that of Det. Goines, and the trial court found probable cause.

By his sole assignment of error, counsel requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal.

As per State v. Benjamin, supra, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and multiple bill in the appeal record. A review of the record reveals one patent error with the defendant’s sentencing under the multiple bill statute. The record indicates that the State only filed a multiple bill against the defendant for committing one count of forcible rape, charging that he also has a prior conviction for forcible rape. However, the trial court vacated defendant’s original sentences and resentenced him under the multiple bill statute to twenty years on each of the three counts to which he pled guilty, i.e. two counts of forcible rape and one count of second degree kidnapping. Because the State only charged the defendant as a multiple offender for one of his forcible rape convictions in the instant case, the trial court erred in enhancing the defendant’s sentences as to his convictions for the second forcible rape count and the count of second degree kidnapping. Accordingly, we hereby vacate the enhanced sentences for defendant’s convictions on the second forcible rape count and on the second degree kidnapping count, and remand this case for resentencing.

The defendant also filed a pro se brief, asserting four assignments of error. At the outset, it is noted that “[i]t is well settled that entry of an unqualified plea of | figuilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal, or where appeal is unavailable, by supervisory review.” State v. Sellers, 2004-1922, 2004-1923, p. 5 (La.App. 4 Cir. 4/20/05), 902 So.2d 418, 421 (quoting State v. Moore, 420 So.2d 1099, 1100 (La.1982)).

■ In his first pro se assignment of error, he argues that he was denied effective assistance of counsel at the probable cause hearing. Specifically, the defendant argues that his attorney failed to object to the victim’s-testimony after it was discovered that the victim was sitting in the courtroom during Det. Goines’ testimony. Because this assignment of error involves a non-jurisdictional defect, this Court is not required to entertain it. See, Sellers, p. 6, 902 So.2d at 421. Moreover, claims of ineffective assistance of counsel are more properly addressed in an application for post-conviction relief, filed in the trial court, where a full evidentiary hearing can be conducted. Id.

In his second pro se assignment of error, the defendant argues that he was denied a fair probable cause hearing. The defendant appears to argue that he was denied a fair probable cause hearing because his counsel failed to object to the victim’s testimony after it was discovered that the victim was sitting in the courtroom during Det. Goines’ testimony. Because this assignment of error involves a non-jurisdictional- defect, this Court is not required to entertain it. See, Sellers, p. 6, 902 So.2d at 421.

In his third pro se assignment of error, the defendant argues that he was denied court-ordered “liberty” without due process of law. In this assignment of error, the defendant appears to argue that, despite the fact that it was ordered that he be released from custody on December 13, 2006, due to a speedy trial violation, he was not released because his “hired counsel conspired with the District ^Attorney’s Office, the Sheriffs Office, and, the Louisiana Department of Probation and Parole, to keep [him] in jail.” Because this assignment of error involves a non-jurisdictional defect, this Court is not required to entertain it. See, Sellers, p. 6, 902 So.2d at 421.

In his fourth pro se assignment of error, the defendant argues that the trial court erred when it denied his motion to quash the bill of information. As per La. C.Cr.P. art. 536, this Court cannot hear any ground for reversal not stated in the original motion to quash. The defendant filed two motions to quash. One motion dealt with only the form of count three on the bill of information. The trial court denied that motion. The second motion alleged a constitutional violation of defendant’s due process right to a speedy trial, as per Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It also included a general allegation that the State failed to bring him to trial within the time limitations of La. C.Cr.P. art. 578. In addition, the second motion identified the fact that on December 13, 2006, the trial court ordered the defendant be released due to a violation of his statutory rights to a speedy trial, but that the release was never effectuated due to the serious nature of the crimes. The trial court denied that motion as well.

Here, the defendant urges only that the trial court erred by appearing to grant his release under La.C.Cr.P. art. 701, and then refusing to do so because of the serious nature of the charges. This argument has no merit, as Article 701 does not provide a basis to quash an indictment. Rather, a violation of Article 701 results in the release of the accused or discharge of his bond obligation pending trial. Any violation of Article 701 became moot when the defendant entered his Crosby plea.

For the reasons stated above, we affirm the defendant’s convictions on two counts of forcible rape and one count of second degree kidnapping. We affirm the | Kdefendant’s sentence as a multiple offender as to his conviction on one count of forcible rape. We vacate the enhanced sentences as a multiple offender for his convictions on the second count of forcible rape and second-degree kidnapping, and remand this case for resentencing.

CONVICTIONS AFFIRMED; SENTENCE AS MULTIPLE OFFENDER AS TO COUNT ONE OF FORCIBLE RAPE AFFIRMED; SENTENCES AS MULTIPLE OFFENDER AS TO COUNT TWO OF FORCIBLE RAPE AND SECOND DEGREE KIDNAPPING VACATED; REMANDED FOR RE-SENTENCING


author: EDWIN A. LOMBARD, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of/and Howard Ross v. Dennard POWELL and the City of New Orleans.
    No. 2012-CA-1421.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Charles S. Green, Jr., Beahm & Green, New Orleans, LA, for Plaintiff/Appellee.
    Shawn Lindsay, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, Churita H. Hansell, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

|! This case arises out of a vehicular accident involving a fire truck owned and operated by the New. Orleans Fire Department. On appeal, the City of New Orleans (the City) argues that the trial court erred in finding in favor of the plaintiff, awarding damages in the amount of $15,472.16, and dismissing the City’s reconventional demand. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

On the evening of April 18, 2008, a Nissan Maxima owned by Howard Ross and driven by his daughter, Nicole Ross, collided with a New Orleans Fire Department (NOFD) fire truck at the intersection of Baronne and Girod Streets. The Nissan was insured by State Farm Mutual Automobile Insurance Company (State Farm) and, accordingly, on April 14, 2009, State Farm and Mr. Ross (as plaintiffs) filed suit against Dennard Powell, the driver of the fire truck, and the City, seeking recompense for the sums expended to repair the vehicle. On June 18, 2009, the City filed its answer and a Reconventional Demand naming Ms. Ross, Mr. Ross and State Farm as defendants, asserting that the accident was caused by Ms. Ross’s negligence. In addition, the City filed a Third Party Demand, naming | ¡>the passenger in the Nissan at the time of the accident, Gregory Zeno, as the negligent driver of the vehicle. In both the Reconventional Demand and Third Party Demand, the City sought compensation for damages and repair to the fire truck in the amount of $17,289.67.

The following evidence was adduced at the trial before the district court judge on July 16, 2012. Ms. Ross related that on the evening of the accident, accompanied by her then-boyfriend Gregory Zeno, she drove her father’s car to drop her younger brother off at the “W” hotel for his school prom. After initially dropping him off, her brother called to tell her that he had forgotten his wallet so she returned home, retrieved his wallet, and took it to him. As she was driving home, the accident occurred. Specifically, Ms. Ross was driving in the left lane on Baronne Street towards the river bridge. As she entered the Girod Street intersection with a green light, she saw the fire truck running the red light facing Girod Street. She applied her brakes but the streets were wet and the fire truck struck the front of the Nissan, turning it parallel with Girod Street and catching the side of the Nissan’s passenger door. According to Ms. Ross, Mr. Zeno climbed over her as she was leaning into the steering wheel to exit the vehicle and then pulled her out of the vehicle. Ms. Ross confirmed that her mother was told (when she subsequently arrived on the scene) by one of the firemen that Mr. Zeno was driving the Nissan at the time of the accident. Ms. Ross remembered talking to a female officer who she assumed was with the NOFD after the accident.

Renae Decker testified that on the evening of the incident, she was sitting in her parked car in front of her place of employment at 610 Baronne Street when she |sheard the impact. Movie trailers parked on each side of the street obstructed her view of Girod Street but she could see the signal lights at the intersection. Immediately upon hearing the impact she looked up and saw the red light reflecting off the Sewell Cadillac glass windows on Girod Street, indicating that the traffic on Girod Street had the red light. She got out of her ear, ran to the accident scene, and gave her phone number to the couple in the Nissan after assuring herself no one was hurt. Ms. Decker did not know the couple in the Nissan or any of the firemen on the fire truck. On cross-examination, Ms. Decker confirmed that, at the time of the accident, she had been employed at the Andry Law Firm for ten years and that she had stated in a deposition that she saw a male silhouette driving the Nissan when it passed her at a “decent speed” on Bar-onne Street and that the fire truck was going “extremely fast.” She also conceded that in a statement to State Farm eighteen months after the accident she said she could not see the traffic control light for Baronne Street at the time of the accident. On redirect, she identified a Chase deposit slip with her name and phone number on it that she had given to the couple in the Nissan. She stated that she had never had a business card for the Andry Law Firm.

Officer Jana Thompson of the New Orleans Police Department (NOPD) testified that she investigated the accident and interviewed the driver of the Nissan (Ms. Ross) who told her that she was entering the intersection when the light turned red and she was struck by the fire truck. From the position of the vehicles, Officer Thompson opined that the Nissan had been the first to enter the intersection. On cross-examination, she stated the traffic lights were functioning properly the evening of the accident.

14 Cap tain Robert Tourres of the New Orleans Fire Department (NOFD) testified that he was a passenger on the fire truck on the evening of the accident, trav-elling from the engine house to “the Chiefs quarters” on Girod Street. Captain Tourres related that as the fire truck approached the intersection at Baronne Street, “we had the green light and we were going over the intersection and this car came from the left at a pretty high rate of speed and ran the red light and hit us in the front wheel are, driver’s side.” When asked whether he was certain as to the color of the traffic signal, Captain Tourres responded, “right when it happened I looked at my operator and I asked him; did we have the green light? He said; [sic] yeah. And I turned around to look at the light because it was behind me and we still had the green light and they had the red.” Captain Tourres stated that “some guy” was driving the Nissan at the time of the accident and when the firemen got out of the fire truck to check on the occupants of the Nissan, the couple was still sitting in the car and “said they were all right.” Under questioning, Captain Tourres related that in his report (filled out the day after the accident) he stated the fire truck was crossing the intersection on a green light at the time of the collision. He also identified the diagram he drew for insurance purposes shortly after the accident that was subsequently admitted into evidence.

Dennard Powell, the driver of the fire truck at the time of the accident, was sworn into testify but after the parties agreed to stipulate that he was going to testify that he was the driver of the vehicle, he had the green light, and he entered the intersection first, he was excused from testifying further.

Based upon the evidence and testimony of the witnesses, the trial judge found in favor of State Farm, awarding damages in the amount of $15,472.16, costs, and interest from the date of judicial demand. The reconventional demand |Bfiled by the City was dismissed with prejudice. The defendants appeal this judgment.

On appeal, the City asserts that the trial court committed manifest error when it found no negligence on behalf of State Farm’s insured, Ms. Ross. Specifically, the City argues that (1) the objective evidence indicates that the fire truck was in the intersection when it was struck by the Nissan; (2) it was error for the trial court to not hear the testimony of Mr. Powell; and (3) it was error for the trial court to find the testimony of Ms. Ross and Ms. Decker credible in light of the testimony of Officer Thompson and the physical evidence. In the alternative, the City argues (for the first time on appeal) that this court should divide the liability of the parties on the basis of contributory and comparative fault in light of jurisprudence related to “favored vehicles” and the duty to allow a car already in an intersection when the traffic signal changes to complete the crossing.

Applicable Law

This court may not set aside a trial court’s finding of fact absence manifest error or unless it is clearly wrong; reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on appeal. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Specifically, under this standard, great deference is given to the credibility determination of the lower court because the fact finder is in the position to observe the witness’s demeanor and tone of voice. Id. at 844-845. Likewise, where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 883 (1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or | ¿wrong but whether the fact finder’s conclusion was a reasonable one. Housley v. Cerise, 579 So.2d 973 (La.1991).

Discussion

A review of the record indicates that, although there is conflicting testimony as to which vehicle had the green light to proceed through the intersection, the testimony of Ms. Ross and Ms. Decker supports the district court’s factual finding that the driver of the fire truck was the negligent party. The objective evidence, the point of impact between the vehicles and the ultimate stopping point of the vehicles, does not invalidate this credibility determination. As clearly indicated by our standard of review, we cannot substitute our judgment for the trial court’s judgment under these circumstances. The City’s argument that trial court erred for not finding the City’s witnesses more credible based on the City’s interpretation of the evidence is without merit.

The record indicates that after Mr. Powell was sworn in, both parties stipulated as to his testimony, and no one objected to his dismissal without further testimony. Under these circumstances, the City’s argument that the trial court erred in not hearing his testimony is without merit.

Finally, there is no indication in the record or trial transcript that the City raised the issue of comparative fault in the trial court. We do not consider issues raised for the first time on appeal and, in any event, in awarding damages and dismissing the City’s Reconventional Demand and Third Party Demand, the court found the defendants 100% at fault. This finding was not clearly wrong and this argument is without merit.

| -¡Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . Inexplicably, the appellee refers to Mr. Zeno as Craig in its brief; the record indicates that Mr. Zeno’s given name is Gregory and he is referred to as "Greg” in Ms. Ross’s testimony.


text:
    STATE of Louisiana v. Aaron T. JOSEPH.
    No. 2012-KA-1176.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

| 'The State appeals the trial court judgment granting the defendant’s motion to quash the indictment. After review of the record in light of the applicable law and arguments of the parties, we affirm the trial court judgment.

Relevant Facts and Procedural History

On July 7, 2007, the defendant, Aaron T. Joseph, was charged by bill of information with unauthorized use of a motor vehicle in violation of La.Rev.Stat. 14:68.4. On July 25, 2007, he pleaded not guilty at his arraignment. After the defendant failed to appear for a hearing on September 14, 2007, his bond was forfeited and an arrest warrant issued. He appeared for trial on September 30, 2009, and on October 28, 2009, but each time his trial was continued. On October 19, 2009, the defendant pleaded guilty to one count of theft of goods valued over five hundred dollars in Jefferson Parish and on October 30, 2009, he was sentenced to serve five years in the custody of the Department of Corrections. On December 2, 2009, the defendant failed to appear for his trial in Orleans Parish, resulting in the issuance of alias capias. The matter was continued without date.

On January 26, 2012, the defendant appeared in court in Orleans Parish for a “filed arrest on capias notification” hearing. Counsel for the defendant filed a motion to quash the indictment, asserting that the State failed to commence trial within the pertinent prescriptive period. The State filed no written opposition to the motion and, at the hearing on April 3, 2012, the State presented no evidence, made no argument, and submitted no written pleading to the court in opposition to the defendant’s motion to quash. Accordingly, the trial court granted the defendant’s motion to quash. At that point the State took its only action with regard to the defendant’s motion, noticing its intent to appeal.

Standard of Review

The trial court’s ruling on a motion to quash should not be reversed in the absence of a clear abuse of discretion. State v. Sorden, 2009-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183 (citations omitted).

Applicable Law

Louisiana’s relevant statute provides that no felony trial, other than for a capital offense, may be commenced after two years from the date of institution of the prosecution. See La. Code Crim. Proc. art. 578(A)(2). This period shall be interrupted if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.” La.Code Crim. Proc. art. 579(A)(3) (emphasis added); see also La.Code Crim. Proc. art. 579(B) (the periods of limitation begin to run anew from the date the cause of interruption no longer exists). Upon expiration of the time period, the court shall, upon motion of the defendant prior to trial, dismiss the indictment. La.Code Crim. Proc. art. 581.

The purpose of the statute’s mandating dismissal upon expiration of the legislative time limits is to enforce the accused’s right to a speedy trial and to | ^prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. Romar, 2007-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 (citing State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286) (citations omitted). In addition, the “statutory scheme limiting the state’s time in which to commence trial after initiating prosecution prevents delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal prosecutions.” Rome, supra (citation and internal quotation marks omitted). Because statutes of limitation are the primary guarantee against inordinate delays and represent the legislative balancing of the interests of the state against the interests of the defendant, “these limitations should be given effect unless the state carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods.” Rome, supra.

When, as in this case, a defendant brings an apparent meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limitation “such that prescription ■will not have tolled.” Rome, supra.

Discussion In its appellate brief, the State asserts that on October 28, 2009, the defendant “was notified in open court to appear on December 2, 2009.” Therefore, according to the State, the defendant’s case had not prescribed “because prescription was interrupted after he failed to appear pursuant to actual notice; there is nothing contained in the record to indicate that the State was aware of his incarceration in another parish.”

| ¿Notably, however, the docket entry which the State cites as evidence of actual notice to the defendant states only “send notices” and “notify defense counsel.” The minute entry for that date (which the State does not cite) does note that “the defendant was notified in court” but does not indicate the substance of this notification. Thus, the evidence that the defendant received actual notice of the December 2, 2009, trial date is equivocal at best. Moreover, under our standard of review, we look to see if the State met its heavy burden in demonstrating that the time limitation was interrupted or suspended and if the trial court abused its discretion in granting the motion to quash. Under the circumstances of this case, where the State failed to present to the trial court any evidence (or even argument) that the time limitation had been suspended, we clearly cannot find that the trial court abused its discretion in granting the motion to quash.

Conclusion

We do not find that the State met its heavy burden in demonstrating an interruption to the time limitation or that the trial court abused its discretion in granting the motion to quash in the total absence of effort on the part of the State to oppose the motion. The trial court judgment is affirmed.

AFFIRMED