author: ORFINGER, J.

text:
    Thomas DEMASE and Joanne Demase, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    Case No. 5D16-2390
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018
    Nancy A. Lauten and George A. Vaka, of Vaka Law Group, Tampa, and Kelly L. Kubiak, of Merlin Law Group, Tampa, for Appellants.
    Lee Craig and Matthew J. Lavisky, of Butler Weihmuller Katz Craig LLP, Tampa, for Appellee.
   ORFINGER, J.

Thomas and Joanne Demase appeal a final order dismissing their bad faith lawsuit against their insurer, State Farm Florida Insurance Company, with prejudice. They argue that the trial court erred in ruling that they could not maintain a bad faith action without alleging that there had been a favorable resolution of an underlying civil action for insurance benefits against State Farm, whether in the form of a judgment, arbitration, appraisal, or action on the contract. We agree and reverse the order of dismissal.

The Demases' home was insured under an insurance policy issued by State Farm. In October 2009, their home sustained suspected sinkhole damage, which they reported to State Farm. State Farm hired Geohazards, Inc., which confirmed the existence of sinkhole activity at the property and recommended certain repairs. The Demases performed the recommended repairs, resulting in further damage to their home. Geohazards then re-inspected the home and made additional recommendations. In August 2012, a neutral evaluator agreed there was sinkhole activity at the property and recommended further repairs. The Demases agreed to proceed with the neutral evaluator's recommended repairs under protest. However, in April 2013, State Farm hired MCD of Central Florida to inspect the property. MCD opined that there was no sinkhole activity affecting the Demases' property. When the Demases persisted with their claim for insurance benefits, State Farm demanded additional documentation, inspections, and examinations under oath. The Demases complied with all of these demands.

On August 27, 2014, the Demases served a civil remedy notice ("CRN") pursuant to section 624.155, Florida Statutes (2014), alleging that State Farm engaged in bad faith insurance practices by failing to promptly and properly investigate the claim, adjust the loss, and act with due diligence and good faith to resolve and pay the claim. The Demases demanded the immediate tender of "all insurance monies due and owing ... that would reasonably place [them] back to their pre-loss condition." The Department of Financial Services accepted the CRN on August 27, 2014, which began a sixty-day period in which State Farm could cure its alleged wrongful conduct. See § 624.155(3)(a), Fla. Stat. (2014). While State Farm paid nothing during the sixty-day cure period, on April 10, 2015, it conceded that the Demases' home could not be repaired and tendered the policy limits.

The Demases then brought a first-party bad faith lawsuit against State Farm, asserting various purported violations of sections 624.155(1)(b) 1. and 626.9541(1)(i), Florida Statutes (2014). State Farm moved to dismiss the complaint, relying on Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289, 1291 (Fla. 1991), which held that "an insured's underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue." State Farm argued that before a bad faith claim could be asserted, the Demases were required to obtain an appraisal award, an arbitration award, or a judgment in an underlying breach of contract case, which they did not do. The Demases responded that a first-party bad faith action ripens when two conditions have been satisfied: (1) the insurer raises no defense that would defeat coverage; and (2) the actual extent of the insured's loss has been determined. They submitted that State Farm's payment of the insurance policy limits after the expiration of the sixty-day cure period found in section 624.155 satisfied those requirements, and was the "functional equivalent of a determination of liability-in other words ... the payment established that [they] had a valid claim."

The trial court dismissed the Demases' complaint, reasoning that it "did not allege there had been a favorable resolution of an underlying civil action for insurance benefits against the insurer-whether in the form of a judgment, arbitration, appraisal, or 'action on the contract.' The Complaint also fails to allege that the Defendant's liability for coverage and the extent of damages has been determined."

This Court reviews orders granting motions to dismiss de novo. E.g., Wallace v. Dean, 3 So.3d 1035, 1045 (Fla. 2009). In assessing the adequacy of the pleading of a claim, we take the factual allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Jordan v. Nienhuis, 203 So.3d 974, 976 (Fla. 5th DCA 2016) ; Ray Coudriet Builders, Inc. v. R.K. Edwards, Inc., 157 So.3d 484, 485 (Fla. 5th DCA 2015).

As we shall explain, we hold that an underlying action on the insurance contract is not required for there to be a determination of the insurer's liability and the extent of the damages as a prerequisite to filing a statutory bad faith action. Instead, an insurer's payment of an insurance claim after the sixty-day cure period provided by section 624.155(3) constitutes a determination of an insurer's liability for coverage and extent of damages under section 624.155(1)(b) even when there is no underlying action.

A cause of action for first-party bad faith did not exist at common law. QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, 94 So.3d 541, 546 (Fla. 2012). In 1982, the Florida Legislature created a first-party bad faith cause of action by enacting section 624.155, Florida Statutes, thereby imposing a duty on insurers to settle their policyholders' claims in good faith. Ch. 82-243, § 9, Laws of Fla. The statute was "designed and intended to provide a civil remedy for any person damaged by an insurer's conduct." QBE Ins. Corp., 94 So.3d at 546. Specifically, section 624.155(1)(a) provides that "[a]ny person may bring a civil action against an insurer when such person is damaged" by a violation by the insurer of certain statutory provisions, including section 626.9541(1)(i), which prohibits unfair methods of competition and unfair and deceptive trade practices regarding claim settlement practices.

Section 624.155(1)(b) 1. gives an insured a civil remedy against an insurer for "[n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests." The damages recoverable by the insured in a bad faith action are those amounts that are the reasonably foreseeable consequences of the insurer's bad faith, which include, but are not limited to, interest, court costs, reasonable attorney's fees, and, in appropriate cases, punitive damages. § 624.155(4), (5), (8), Fla. Stat. (2014).

As a condition to bringing such a bad faith action, Florida's Department of Financial Services and the insurer must be given sixty days' written notice of the claim. See § 624.155(3)(a), Fla. Stat. (2014). "The sixty-day window is designed to be a cure period that will encourage payment of the underlying claim, and avoid unnecessary bad faith litigation." Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1282 (Fla. 2000) (citation omitted). This cure period allows the insurer "a final opportunity 'to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate that contractual benefits are owed.' " Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1220 (Fla. 2016) (quoting Talat Enters., 753 So.2d at 1284 ). "[I]f an insurer fails to respond to a civil remedy notice within the sixty-day window, there is 'a presumption of bad faith sufficient to shift the burden to the insurer to show why it did not respond.' " Id. (quoting Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 619 (Fla. 1994), receded from in part on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63 (Fla. 1995) ). Hence, a statutory bad faith claim under section 624.155 is ripe for litigation when there has been (1) a determination of the insurer's liability for coverage; (2) a determination of the extent of the insured's damages; and (3) the required notice is filed pursuant to section 624.155(3)(a). Landers v. State Farm Fla. Ins. Co., 234 So.3d 856, 859 (Fla. 5th DCA 2018) ; Cammarata v. State Farm Fla. Ins. Co., 152 So.3d 606, 612 (Fla. 4th DCA 2014).

In Blanchard, the United States Court of Appeals for the Eleventh Circuit asked the Florida Supreme Court the following question: "Does an insured's claim ... under section 624.155(1)(b)(1)., Florida Statutes, for allegedly failing to settle the ... claim in good faith accrue before the conclusion of the underlying litigation for the contractual ... benefits?" 575 So.2d at 1290. The supreme court answered that the insured must obtain the favorable resolution of the underlying first-party action for insurance benefits before the insured can sue for bad faith. Id. at 1291. Although Blanchard refers to a favorable resolution of an "underlying first-party action," "no language in Blanchard expressly states that an insured must have filed any breach of contract action before a bad faith claim accrues." Cammarata, 152 So.3d at 610.

In Vest, the supreme court clarified Blanchard and ascribed the "underlying first-party action" language to the procedural context in which the Blanchard case arose, stating:

Blanchard arose in the context of a certified question arising out of an issue as to whether the failure to pursue a bad-faith action for violation of section 624.155(1)(b) 1[.] in an action for breach of the underlying insurance contract for nonpayment of benefits was the improper splitting of a cause of action. We held that it was not. Our decision in that case had to do with the timing of the bringing of causes of actions and not as to what claims could be pursued when a claim for bad faith ripened.

753 So.2d at 1275 ; see also Cammarata, 152 So.3d at 610 (attributing "underlying first-party action" statement to Blanchard's"procedural context"). The Vest court then held that the Blanchard prerequisites are properly read as conditions that the plaintiff must establish before asserting a bad faith claim. 753 So.2d at 1275. "Once those elements exist, there is no impediment as a matter of law to a recovery of damages for violation of section 624.155(1)(b) 1[.] dating from the date of a proven violation." Id. The court concluded that "[w]e continue to hold in accord with Blanchard that bringing a cause of action in court for violation of section 624.155(1)(b) 1[.] is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract." Id. at 1276.

In Vest, the supreme court cited with approval the fourth district's decision in Brookins v. Goodson, 640 So.2d 110 (Fla. 4th DCA 1994), disapproved of in part on other grounds by Laforet, 658 So.2d at 62, which held that payment of the policy limits by an insurer was the "functional equivalent" of an allegation that there has been a final determination of the insurer's liability and damages. The supreme court described the issue in Brookins as "whether a settlement constituted the 'determination of damages' required by Blanchard...." Vest, 753 So.2d at 1273. It then quoted the following language from Brookins with approval:

The supreme court has recently held that to state a cause of action for first party bad faith there must be an allegation that there has been a determination of the insured's damages. Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla. 1994). The court did not, however, require that the damages be determined by litigation, that there be an allegation of a specific amount of damages or that the damages be in excess of the policy limits. The court was not faced with the circumstance presented here where the policy limits are subsequently tendered by the insurer. The insured in Imhof received an award of damages through arbitration of an amount less than the policy limits. The amount or extent of damages was held not to be determinative of whether an insured could bring a first party bad faith claim; the purpose of the allegation concerning a determination of damages was to show that " Imhof had a valid claim." Id. at 618.
We hold that the payment of the policy limits by the insurer here is the functional equivalent of an allegation that there has been a determination of the insured's damages. It satisfies the purpose for the allegation-to show that the insured had a valid claim.
....
Neither in Blanchard nor more recently in Imhof does the supreme court suggest that the required resolution of the insured's underlying claim must be by trial or arbitration .... However, as noted in Blanchard , a resolution of some kind in favor of the insured is a prerequisite. There was a favorable resolution here.

Vest v. Travelers Ins. Co., 753 So.2d 1270, 1273-74 (Fla. 2000) (quoting Brookins, 640 So.2d at 112-13 ) (emphasis added).

Based on Vest's clarification of Blanchard and its reliance on Brookins, the fourth district court in Cammarata held that

an insurer's liability for coverage and the extent of damages, and not an insurer's liability for breach of contract, must be determined before a bad faith action becomes ripe. To paraphrase Vest, the determination of the existence of liability and the extent of the insured's damages are the conditions precedent to a bad faith action, along with the notice requirement of section 624.155(3)(a), Florida Statutes (2011). Those first two conditions may be established when a settlement determines the existence of liability and the extent of the insured's damages. As stated in Brookins, and as approved in Vest, that settlement does not require the damages to be determined by litigation.

152 So.3d at 612.

Hence, litigation is not the only means for an insured to obtain the determination of liability and the full extent of his or her damages. See, e.g., Trafalgar at Greenacres,Ltd. v. Zurich Am. Ins. Co., 100 So.3d 1155, 1158 (Fla. 4th DCA 2012) ("A judgment on a breach of contract action is not the only way of obtaining a favorable resolution."); see also Cammarata, 152 So.3d at 613 (en banc) ("[W]e stand by our numerous prior opinions holding that, where the insurer's liability for coverage and the extent of damages have not been determined in any form , an insurer's liability for the underlying claim and the extent of damages must be determined before a bad faith action becomes ripe.") (second emphasis added); Hunt v. State Farm Fla. Ins. Co., 112 So.3d 547, 549 (Fla. 2d DCA 2013) (reiterating that judgment on breach of contract action is not only way of obtaining favorable resolution).

An insured may obtain a determination of the insurer's liability and the extent of their damages by litigation, arbitration, settlement, stipulation, or the payment of full policy limits. Accord Fridman, 185 So.3d at 1224 ("Certainly, the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial and may utilize other means of doing so, such as an agreed settlement, arbitration, or stipulation before initiating a bad faith cause of action."); Vest, 753 So.2d at 1274 (implicitly adopting Brookins court's reasoning that payment of policy limits by insurer is evidence of validity of bad faith claim); see Plante v. USF&G Specialty Ins. Co., No. 03-23157CIVGOLD, 2004 WL 741382, at *4 (S.D. Fla. Mar. 2, 2004) (stating that fact that supreme court in Vest reaffirmed fourth district's decision in Brookins suggested that payment of insurance claim satisfies prerequisite for bad faith suit); see also Sammy Sterling Holdings, LLC v. U.S. Aircraft Ins. Grp., No. 16-CIV-21230, 2016 WL 8679130, at *3 (S.D. Fla. June 23, 2016) (finding plaintiffs sufficiently alleged determination of liability as insurer actually admitted liability for loss by issuing payments, albeit partial, in response to plaintiffs' claims and alleged determination of damages as well because partial payment, constituting final amount owed under policy, sufficiently satisfied extent of damages); Sabatula v. State Farm Mut. Auto. Ins. Co., No. 5:11-CV-368-OC-37TBS, 2011 WL 4345302, at *5 (M.D. Fla. Sept. 16, 2011) (holding that by paying full policy amount, insurer conceded that insured plaintiff had valid claim on first-party insurance contract and that insured's damages have minimum value set at amount of policy limits); Hamilton v. Allstate Indem. Co., No. 805CV992T17MAP, 2005 WL 2465021, at *2 (M.D. Fla. Oct. 6, 2005) (stating that insurer's payment of policy limit to insured "serves as the 'functional equivalent' of a determination of the insured's damages" (quoting Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1328, 1332 (M.D. Fla. 1998) ) ).

We read Blanchard, as clarified by Vest, to require only a determination of liability and a determination of damages before suing for bad faith. See Fox v. Starr Indem. & Liab. Co., No. 8:16-CV-3254-T-23MAP, 2017 WL 1541294, at *5 (M.D. Fla. Apr. 28, 2017) ("Under Trafalgar, Hunt, and Cammarata, a plaintiff insured need not allege success on a breach-of-contract claim to sue the defendant insurer for bad faith."); Brookins, 640 So.2d at 113 ("The bad faith statute imposes no requirement of a prior judgment as a condition precedent to a bad faith claim."). As happened here, the payment of the full policy limits after the sixty-day cure period provided in section 624.155(3) satisfied the requirement that there has been a final determination of the insurer's liability and damages. Vest, 753 So.2d at 1273-74 ; Brookins, 640 So.2d at 112-13 ; see Marraccini v. Clarendon Nat'l Ins. Co., No. 02-20896-CIV, 2003 WL 22668842, at *2 (S.D. Fla. Oct. 1, 2003) (noting that insurer cannot escape liability under bad faith statute by belatedly paying policy limits after sixty-day cure period has expired, and to hold otherwise would render portion of statute requiring damages to be paid within 60 days meaningless). In obtaining a determination of liability and a determination of damages, the "key" is not the underlying breach of contract action, but rather, the payment by the insurer. See Barton v. Capitol Preferred Ins. Co., 208 So.3d 239, 243 (Fla. 5th DCA 2016) (holding that insurer's $65,000 settlement payment paid after sixty-day cure period constituted favorable resolution for insureds even though amount was less than policy limits and amount that insureds initially demanded).

For these reasons, we conclude the Demases' amended complaint adequately states a cause of action. The order of dismissal is reversed and the matter remanded for further proceedings.

REVERSED and REMANDED.

WALLIS, J. and PERKINS, T., Associate Judge, concur.

      A determination of liability and extent of damages does not require that the insured bring and succeed in some form on a breach-of-contract claim against the insurer before the insured can state a claim against the insurer for first-party bad faith. In Time Insurance Co. v. Burger, 712 So.2d 389 (Fla. 1998), the insured submitted a claim for payment of health care benefits. After the health insurance company refused to pay the bills, the insured sent the CRN. The health insurance company did not cure within sixty days of the notice. The insured filed a bad-faith cause of action based on the health insurance company's failure to pay the claims that he initially submitted. The supreme court recognized the claim for bad faith, although it does not appear that the insured filed an underlying action on the insurance contract.

      In determining the insurer's liability, courts analyze whether the underlying policy was triggered by the loss. In other words, the insurer must have at least some exposure, and this exposure needs to be plausible in light of the plaintiff's complaint. See Blanchard, 575 So.2d at 1291 ("If an uninsured motorist is not liable to the insured for damages arising from an accident, then the insurer has not acted in bad faith."); Trafalgar at Greenacres, Ltd., 100 So.3d at 1157 (holding there is no determination of liability when "the insurer raises no defense which would defeat coverage"); see also Heritage Corp. of S. Fla. v. Nat'l Union Fire Ins. Co. of Pittsburg, PA., 255 Fed.Appx. 478, 481 (11th Cir. 2007) ("[T]he purpose of the allegation concerning a determination of damages [is] to show that '[the plaintiff] had a valid claim.' " (quoting Vest, 753 So.2d at 1273 ) ).

      State Farm's reliance on State Farm Mutual Automobile Insurance Co. v. Brewer, 940 So.2d 1284 (Fla. 5th DCA 2006), in arguing that this Court has recognized that in order to satisfy the condition precedent in Blanchard, the insured would need to bring an action on the contract, is misplaced. Brewer was involved in an automobile accident with an uninsured driver. Brewer, 940 So.2d at 1285. She later filed a civil remedy notice, alleging that the insurer failed to disclose the applicability of coverage and pay benefits but did not state any amount of benefits or contractual damages allegedly due. Id. Within the statutory sixty-day cure period , the insurer paid what was due and cured the alleged violations. Id. That is markedly different from what occurred here.


source: Caselaw Access Project

author: CLARK, Justice WEIMER, J., concurring.

license: Public Domain

text:
    David CARVER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY
    No. 2017-CA-1340
    Supreme Court of Louisiana.
    January 30, 2018
    LOUISIANA DEPARTMENT OF JUSTICE, Hon. Jeffrey Martin Landry, Attorney General, Jeffrey Michael Wale; Angelique Duhon Freel ; Stephen Alexander Quidd ; Jennifer Del Murray; For Appellant
    Fred Timothy D. Crifasi, Baton Rouge; Robert N. Aguiluz ; For Appellee.
   CLARK, Justice

This case concerns the constitutionality of La. R.S. 32:667, particularly paragraphs La. R.S. 32:667(H)(3) and (I)(1)(a). Plaintiff, David T. Carver, alleged these paragraphs violated the Due Process Clauses of the United States and Louisiana Constitutions.

Following the District Court's finding that the paragraphs violated the Due Process Clauses, the Department of Public Safety and Corrections, Office of Motor Vehicles (the State) directly appealed that finding to this Court. For the reasons that follow, we find that the applicable paragraphs do not violate the Due Process Clauses of the United States and Louisiana Constitutions. Thus, we reverse the District Court's judgment of unconstitutionality and remand the matter for proceedings consistent with this holding.

FACTS AND PROCEDURAL HISTORY

In 2009, Plaintiff was arrested for driving while intoxicated (DWI) pursuant to La. R.S. 14:98. Plaintiff refused to submit to a chemical test for intoxication and his license was suspended for 180 days. The arrest did not result in a conviction, as Plaintiff participated in a pre-trial diversion program.

In 2014, Plaintiff was again arrested for DWI and charged with a violation of La. R.S. 14:98. At the time of the arrest, Plaintiff again refused to submit to a chemical test for intoxication. Plaintiff later pled guilty to the DWI charge. The District Court deferred Plaintiff's sentence and placed him on one-year probation. After more than one year, the District Court dismissed the charge.

As a result of the arrest and refusal to take the chemical test for intoxication, the State again suspended Plaintiff's driver's license, this time for one year. Plaintiff presented the District Court dismissal to the State in an attempt to reinstate his driver's license privileges. The State denied unrestricted reinstatement based on La. R.S. 32:667(H)(3), which prohibits reinstatement of driving privileges if the person refused to submit to an approved chemical test upon a second or subsequent arrest, and upon the facts that Plaintiff was twice arrested for DWI and twice refused to submit to a chemical test for intoxication. The State then required Plaintiff to install an ignition interlock device on his vehicle as a condition to reinstatement pursuant to La. R.S. 32:667(I)(1)(a) on the basis he had refused to submit to the chemical test for intoxication.

Plaintiff filed a written request for an administrative hearing to review the State's suspension of his driving privileges with the Division of Administration (DOA). After the hearing, the administrative law judge affirmed the State's ruling.

Plaintiff then filed a petition for judicial review of the State's ruling suspending his driver's license. The petition alleged that the DOA ruling violated constitutional and statutory provisions, exceeded the DOA's authority, and constituted an arbitrary and capricious exercise of discretion.

Thereafter, Plaintiff filed a motion for declaratory judgment, seeking to have La. R.S. 32:667(H)(3) and (I)(1)(a) declared unconstitutional.

Prior to the hearing, the District Court informed the parties that any constitutional challenge would be preserved until after a ruling on the merits of the case, and only if necessary. After a hearing, the District Court affirmed the administrative judge's decision to suspend Plaintiff's driving privileges, ordered Plaintiff's driver's license suspended for 730 days pursuant to La. R.S. 32:667, ordered Plaintiff was eligible for a hardship driver's license, and required Plaintiff to have an interlock ignition device for the duration of the suspension period. The District Court also declined to declare La. R.S. 32:667(H)(3) unconstitutional and refused to declare La. R.S. 32:667(I)(1)(a) unconstitutional as an ex post facto law.

Plaintiff then filed a motion for consideration of the constitutional challenge, re-urging his constitutional challenge of La. R.S. 32:667(I)(1)(a) based on the District Court's decision to defer a ruling on the issues of due process and double jeopardy until after a ruling on the merits.

On May 19, 2017, the District Court declared La. R.S. 32:667(I)(1)(a) unconstitutional on the ground it violated due process. On May 25, 2017, the District Court amended its judgment to hold that both La. R.S. 32:667(H)(3) and (I)(1)(a) were unconstitutional, as violating the Due Process Clauses of the United States and Louisiana Constitutions, as these provisions "mandate punitive duplicitous measures based entirely on a previous arrest, rather than on previous illegal conduct proven by any recognized burden." The District Court expressly declined to address the issue of whether La. R.S. 32:667(H)(3) and (I)(1)(a) violate the Double Jeopardy Clause of the United States and Louisiana Constitutions.

The State directly appealed the District Court's ruling to this Court as allowed by Article V, § 5, Paragraph D of the Louisiana Constitution.

LAW AND ANALYSIS

Plaintiff contended at the District Court that various aspects of La. R.S. 32:667 are unconstitutional, namely La. R.S. 32:667(H)(3) and (I)(a). Louisiana R.S. 32:667 provides in pertinent part:

(H). (1.) When any person's driver's license has been seized, suspended, or revoked, and the seizure, suspension, or revocation is connected to a charge or charges of violation of a criminal law, and the charge or
charges do not result in a conviction, plea of guilty, or bond forfeiture, the person charged shall have his license immediately reinstated and shall not be required to pay any reinstatement fee if at the time for reinstatement of driver's license, it can be shown that the criminal charges have been dismissed or that there has been a permanent refusal to charge a crime by the appropriate prosecutor or there has been an acquittal. If, however, at the time for reinstatement, the licensee has pending against him criminal charges arising from the arrest which led to his suspension or revocation of driver's license, the reinstatement fee shall be collected. Upon subsequent proof of final dismissal or acquittal, other than under Article 893 or 894 of the Code of Criminal Procedure, the licensee shall be entitled to a reimbursement of the reinstatement fee previously paid. In no event shall exemption from this reinstatement fee or reimbursement of a reinstatement fee affect the validity of the underlying suspension or revocation.
* * *
(3). Paragraph (1) of this Subsection shall not apply to a person who refuses to submit to an approved chemical test upon a second or subsequent arrest for R.S. 14:98 or 98.1, or a parish or municipal ordinance that prohibits driving a motor vehicle while intoxicated. However, this Paragraph shall not apply if the second or subsequent arrest occurs more than ten years after the prior arrest.
* * *
(I). (1)(a). Any person who has refused to submit to an approved chemical test for intoxication, after being requested to do so, for a second arrest of R.S. 14:98 or 98.1 or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated and whose driver's license has been suspended in accordance with law.

Plaintiff's allegations stem from his plea of guilty to driving while intoxicated on November 17, 2014. His charge was dismissed on January 8, 2016. He applied to have his driving privileges reinstated by the Office of Motor Vehicles. The Office of Motor Vehicles denied his reinstatement because he had a prior arrest for driving while intoxicated in 2009. Following a hearing, the District Court held that La. R.S. 32:667(H)(3) and (I)(l)(a) violated the Due Process Clauses of the United States and Louisiana Constitutions.

Questions of law, such as the proper interpretation of a statute, are reviewed by this Court under the de novo standard of review, and this Court is not required to give deference to the lower court in interpreting the constitutionality of a statute. La. Municipal Ass'n v. State , 04-0227 (La. 1/19/05), 893 So.2d 809, 836.

All statutory enactments are presumed constitutional, and every presumption of law and fact must be indulged in favor of legality. Moore v. RLCC Technologies, Inc. , 95-2621 (La. 2/28/96), 668 So.2d 1135. In the case of City of Shreveport v. Pedro , 170 La. 351, 127 So. 865 (La. 1930), this Court explained the basic requirements of a constitutional challenge: "It is elementary that all laws are presumed to be constitutional until the contrary is made clearly to appear, and that he who urges the unconstitutionality of a law must specially plead its unconstitutionality, and show specifically wherein it is unconstitutional." Pedro , 170 La. 351, 127 So. 865. Similarly, in Johnson v. Welsh , 334 So.2d 395, 396 (La. 1976), the court stated: "It is well settled that all laws are presumed to be constitutional until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized." The presumption is especially forceful in the case of statutes enacted to promote a public purpose. Polk v. Edwards , 626 So.2d 1128, 1132 (La. 1993). The legislature is given great deference in the judicial determination of a statute's constitutionality, and legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation. Greater New Orleans Expressway Commission v. Olivier , 04-2147 (La. 1/19/05), 892 So.2d 570, 573. Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving it is unconstitutional. State v. Brenan , 99-2291 (La. 5/16/00), 772 So.2d 64, 67. The burden plaintiffs carry in challenging the constitutionality of a statute is a heavy burden. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Hite v. Larpenter , 04-1821 (La.App. 1 Cir. 9/23/05), 923 So.2d 140, 145, writ denied , 05-2255 (La. 3/10/06), 925 So.2d 511.

The legislature's powers are derived from the citizens of the state who freely elect their legislative representatives; in other words, the provisions of the Louisiana Constitution serve as limitations on the otherwise plenary power exercised by the legislature, which may enact any legislation not prohibited by the Constitution. Polk , 626 So.2d at 1132.

Because of the presumption of constitutionality, in determining the validity of a constitutional challenge, a Court "must construe a statute so as to preserve its constitutionality when it is reasonable to do so." M.J. Farms, Ltd. v. Exxon Mobil Corporation , 07-2371, p. 22 (La. 7/1/08), 998 So.2d 16, 31. In addition, when deciding whether a particular legislative enactment is unconstitutional, this Court has repeatedly stated that it is not the court's "duty to determine the wisdom behind the enactment of [the] legislation." M.J. Farms , 998 So.2d at 34. Thus, so-called "policy considerations" are not relevant to the decision, as such considerations are more appropriately presented to the legislature, in the first instance, when the pros and cons of a proposed law are being debated. M.J. Farms , 998 So.2d at 34.

Procedural Due Process

Procedural due process requires that before an individual is deprived of a property or liberty right, the individual must be provided with notice and an opportunity to be heard. State v. Golston , 10-2804 (La. 7/1/11), 67 So.3d 452, 463. Louisiana R.S. 32:667(A)(2) provides that an arrestee has thirty days from the date of arrest to make a written request for an administrative hearing. At this hearing, in order to prove that license suspension is appropriate, the State must prove (among other things): (1) whether the arresting officer had reasonable grounds to believe the arrestee had been driving, or was in actual physical control of a motor vehicle upon the public highways of the state; (2) whether the arrestee was placed under arrest; (3) whether the arrestee was advised by the officer of his Miranda rights and that his driving privileges could be suspended for refusing to submit to the chemical test; and (4) whether he refused to submit to the test upon the request of the officer. La. R.S. 32:668(A). If the administrative hearing officer upholds the suspension, the arrestee then has the right to appeal the decision of the administrative hearing to a judicial court. La. R.S. 32:668(C)(1).

La. R.S. 32:667(H)(3) prohibits someone who refuses a chemical test for a second arrest of driving while intoxicated from being exempt from paying fees. This provision does not deprive one who refuses a chemical test of due process. As La. R.S. 32:667(G) provides, "[n]otwithstanding the provisions of any other law, any person whose license has been suspended under the provisions of this Section, shall, after completion of the period of suspension, be required to pay a reinstatement fee of fifty dollars to the department for the return of his license." Anyone whose license is suspended under this section is required to pay the fee, and anyone whose license is suspended has the right to an administrative hearing pursuant to the provisions of La. R.S. 32:667. This administrative hearing provides the notice and opportunity to be heard. Therefore, La. R.S. 32:667(H)(3) affords procedural due process.

Plaintiff argued during oral argument that the process was flawed, in that an arrestee who was wrongly arrested would be deprived of the early reinstatement opportunity contained in La. R.S. 32:667(H)(1). This argument is baseless, as the State must prove during the administrative hearing that an arresting officer "had reasonable grounds" for the arrest. La. R.S. 32:668(A)(1).

Substantive Due Process

"Substantive due process rights are balanced against the police power of a governing authority to protect the health, safety, morals and general welfare of the people. Governments have an inherent need 'to protect the safety and welfare of their citizens from the unrestrained liberty of some individuals.' " Golston , 67 So.3d at 467.

The Louisiana Highway Regulatory Act, established in La. R.S. 32:1 et seq. , was enacted pursuant to the police power of the State and governs those traveling on roads throughout Louisiana. The Louisiana Highway Regulatory Act created two primary departments to serve this purpose, the Department of Transportation and Development, created by La. R.S. 32:2, and the Department of Public Safety, created by La. R.S. 32:3.

The police power of the State was further explained in Polk , 626 So.2d at 1142, which held: La. Const. Art. VI, § 9 (B) provides that "notwithstanding any provisions of this Article, the police power of the state shall never be abridged." While this Court has acknowledged that the term "police power" is best defined on a case by case basis, this term is generally described as the inherent power of the state to govern persons and things for the promotion of general security, health, morals, and welfare. Polk , 626 So.2d at 1142. Louisiana R.S. 32:667, in particular La. R.S. 32:667(H)(3) and (I)(1)(a), simply serves as an exercise of the legislature's right to regulate the operation of motor vehicles in Louisiana for the benefit of public health, safety, morals and general welfare of the citizens of the State, and the statute is rationally related to such a purpose.

As this Court has said regarding driving while intoxicated:

We have already determined that the right to operate a motor vehicle in Louisiana is a privilege granted by the state and not a constitutional right. Consequently, the state has and can enact numerous conditions on that privilege.
Our constitution wisely provides for separation of powers, and authorizes the legislature to make public policy determinations of controversial issues. Therefore, under our constitution, the legislature has determined that the public policy of Louisiana is to keep drunk
drivers off the state highways. [The propriety of such] public policy [ ] should not be determined by this court.
Moreover, the state's interests are immediately apparent: (1) the lack of compliance with the law ...; (2) the high incidence of motor-vehicle accidents involving drunk drivers; (3) the reduction of deaths and injuries that usually result from motor vehicle accidents involving drunk drivers; and (4) the evident risk of the defendant continuing to drive while intoxicated .... The state's interests are significant.

State v. Edwards , 00-1246 (La. 6/1/01, 15), 787 So.2d 981, 992-93 (citations omitted). As a means of identifying drunk drivers, the above is applicable to requiring chemical testing. Thus, requiring motorists reasonably suspected of driving while intoxicated to undergo chemical testing is directly and reasonably related to the health, safety, morals and general welfare of the citizens of the State.

Further, Louisiana has an "implied consent" law, and this Court has previously recognized that the United States Supreme Court has declared that such laws are constitutional. See Monroe v. High , 254 La. 362, 223 So.2d 834, 838 (1969) (citing Breithaupt v. Abram , 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and Schmerber v. State of California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ). In Monroe , which dealt with the refusal to give permission to secure a sample of blood by venipuncture for the performance of blood alcohol determination, this Court noted that the implied consent law provides that any person who operates a motor vehicle upon the public highways of Louisiana shall be deemed to have given consent to a chemical test to measure his blood alcohol content. Monroe , 223 So.2d at 838. Given this implied consent, the legislature, again, clearly has a rational basis for penalizing the refusal of an arrestee for declining to consent to a chemical test by either charging an enhanced administrative fee for license reinstatement, or by withholding reinstatement altogether. Further, charging an administrative fee, or withholding reinstatement, to those suspected of driving while intoxicated is, likewise, clearly within the police power of the state, and thus does not violate substantive due process.

CONCLUSION

For the reasons given, we find that La. R.S. 32:667(H)(3) and (I)(1)(a) are constitutional, and the judgment of the District Court is reversed. The matter is remanded to the District Court for proceedings consistent with this holding.

REVERSED AND REMANDED

WEIMER, Justice, concurs in the result and assigns reasons.

WEIMER, J., concurring.

I concur in the result and write separately to point out that the district court focused on the defendant's arrest in holding the statute unconstitutional. While the arrest is a prerequisite to offering the test for alcohol consumption to one charged with driving while intoxicated, and the defendant is innocent until proven guilty, the defendant's refusal to consent to the test should be the focal point.

Of course, as recognized by the majority, driving is a privilege and not a right. State v. Jackson , 00-0015, p. 10 (La. 7/6/00), 764 So. 2d 64, 72. The state can impose reasonable requirements on a driver to exercise that privilege. See id . Under the statutory provisions in question, after the arrest, the defendant is faced with a choice-to take or to refuse the test. A difficult choice is still a choice. Ultimately, the consequences imposed result from the refusal to take the test in this matter, not from the arrest itself. Therefore, the statutory provisions in question satisfy the due process requirements.

Accordingly, I respectfully concur in the result in this matter.

      Carver v. Louisiana Department of Public Safety , 17-1340 (La. 1/30/18), slip op. at 8.


author: PER CURIAM WEIMER, J., dissenting.

text:
    STATE EX REL. John ESTEEN v. STATE of Louisiana
    No. 2016-KH-0949
    Supreme Court of Louisiana.
    January 30, 2018
    SOUTHERN UNIVERSITY LAW CLINIC, Kelly Grace Carmena; For Applicant;
    JEFFERSON PARISH DISTRICT ATTORNEY'S OFFICE, Hon. Paul D. Connick, Jr., District Attorney, Terry Michael Boudreaux, Darren Anthony Allemand; For Respondent.
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON
   PER CURIAM

Relator John Esteen, along with 22 others, was charged with several drug and racketeering offenses committed in 1998 and 1999. Relator was ultimately found guilty of two counts of possession of cocaine over 400 grams, conspiracy to possess cocaine over 400 grams, and attempted possession of cocaine over 400 grams. The district court sentenced him to consecutive terms of imprisonment at hard labor totaling 150 years. His convictions and sentences were affirmed on appeal. State v. Esteen , 01-0879 (La. App 5 Cir. 5/15/02), 821 So.2d 60, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983.

In 2016, relator filed a motion to correct illegal sentences seeking the benefit of more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403 (effective June 15, 2001), which the legislature later declared in La.R.S. 15:308(B) (effective May 16, 2006) "shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced" in accordance with enumerated provisions, including those pursuant to which relator was sentenced on three counts. The district court denied the motion and the court of appeal denied writs, relying on State v. Dick , 06-2223 (La. 1/26/07), 951 So.2d 124.

In State v. Dick , this court was faced with an apparent conflict between La.R.S. 15:308(B) and (C) because the former mandated retroactive application of reduced penalties to offenders already sentenced while the latter entitled offenders to seek the benefit of the ameliorative sentencing provisions from the Louisiana Risk Review Panel. Dick , 06-2223, pp. 9-10, 951 So.2d at 130-31. In light of this conflict, the court considered whether La.R.S. 15:308(B) granted district courts the authority to modify previously imposed sentences by mandating retroactive application of the reduced penalty provisions. A majority of the court found that resentencing an offender in order to retroactively apply the more lenient penalty provisions to an offender whose conviction and sentence are final would be, in effect, commutation of a legal and final sentence. Dick , 06-2223, pp. 12-13, 951 So.2d at 132. The Dick majority further found that the power of commutation falls exclusively within the executive branch of government. Id. , 06-2223, p. 13, 951 So.2d at 132. Therefore, the majority determined that the legislature, which is aware of the constitutional separation of powers, did not intend for La.R.S. 15:308(B) to confer that authority on the district courts, and the majority further found that an offender's exclusive remedy was to apply to the Louisiana Risk Review Panel pursuant to former La.R.S. 15:308(C). Dick , 06-2223, pp. 13-15, 951 So.2d at 132-33. After Dick , the legislature repealed La.R.S. 15:308(C) and eliminated the Louisiana Risk Review Panel in 2012 La. Acts 123. Then, in 2014 La. Acts 340, the legislature reenacted La.R.S. 15:308(C) so that it now provides: "Such persons shall be entitled to apply to the committee on parole pursuant to R.S. 15:574.2."

Thus, after the reenactment, the interpretative problem posed by the apparent conflict between La.R.S. 15:308(B) and (C) remains. Specifically, La.R.S. 15:308(B) mandates that the ameliorative provisions shall apply retroactively to offenders who are already sentenced while La.R.S. 15:308(C) entitles an offender to apply to the committee on parole, which will, "taking into consideration the risk of danger the applicant would pose to society if released from confinement," issue a recommendation to the Board of Pardons regarding "whether the applicant is eligible for a reduction." La.R.S. 15:574.2(I)(1) (emphasis added).

Relator contends that La.R.S. 15:308(A) and (B) render his sentences for possession of cocaine over 400 grams and attempted possession of cocaine over 400 grams illegal. Relator seeks correction of what he characterizes as now illegal sentences pursuant to La.C.Cr.P. art. 881.5, which provides, "On motion of the state or the defendant, or on its own motion, at any time, the court may correct a sentence imposed by that court which exceeds the maximum sentence authorized by law." The state contends that defendant is not entitled to be resentenced and his only avenue for relief is through the committee on parole in accordance with La.R.S. 15:308(C) in conjunction with La.R.S. 15:574.2(I)(1).

This court erred in State v. Dick to the extent we resolved the tension between these provisions by finding that the only avenue to gain the benefit of the more lenient penalty provisions retroactively is by application to the Risk Review Panel at that time (subsequently amended to authorize application to the committee on parole). Instead, we find these provisions can be harmonized in a way that avoids the separation of powers problem on which the holding of Dick depended.

In Dick , the majority equated the judicial amendment of a final sentence in accordance with a retroactive legislative act to "allow[ing] the judiciary to exercise the power of commutation." Dick , 16-2223, p. 12, 951 So.2d at 132. That conclusion, however, failed to take into account three principles. First, that it is the legislature's "exclusive authority to determine length of punishment for crimes classified as felonies." Bosworth v. Whitley , 627 So.2d 629, 633 (La. 1993). Second, that "[o]ne of the traditional, inherent and exclusive powers of the judiciary is the power to sentence.... [T]he fixing of penalties is purely a legislative function, but the trial judge has the discretion to determine the appropriate sentence within the sentencing range fixed by the legislature ." State v. Rome , 96-0991, pp. 3-4 (La. 7/1/97), 696 So.2d 976, 978 (emphasis added, internal citations and footnote omitted). Third, because the provisions of the Louisiana Constitution are not grants of power but instead are limitations on the otherwise plenary power of the people, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371, p. 21 (La. 7/1/08), 998 So.2d 16, 31.

While the power of commutation is bestowed on the executive branch, "[a] pardon is a matter of grace from the state and a function of the executive branch of government, not subject to limitation or control from the other branches." Bryant v. Louisiana State Pardon Bd. , 378 So.2d 180, 181 (La. App. 1 Cir. 1979). In addition, there are no restrictions on the exercise of the executive's traditional prerogative to ameliorate harsh penalties otherwise provided by law for offenders who have proved their ability to rehabilitate in a custodial environment." Bosworth , 627 So.2d at 633 (emphasis added).

Here, the legislature, "[i]n the interest of fairness in sentencing," declared in La.R.S. 15:308(B) its intention that the more lenient penalty provisions be applied retroactively to those persons "who were sentenced according to [listed provisions, including La.R.S. 40:967(F)(1) ] prior to June 15, 2001, provided that such application ameliorates the person's circumstances." The declared interest in fairness in sentencing is not equivalent to a matter of grace, and nothing in La.R.S. 15:308 limits or controls the executive branch's exercise of its prerogatives. Instead, the legislature exercised its exclusive authority to determine the length of punishment for crimes classified as felonies, and further declared those more lenient penalties shall be applied retroactively to those already sentenced. Nothing in the constitution prohibits the legislature from enacting more lenient penalty provisions and declaring they be applied retroactively in the interest of fairness in sentencing.

At the time relator committed the offenses of possession of cocaine over 400 grams and attempted possession of cocaine over 400 grams, the penalty provisions required that relator be sentenced to terms of imprisonment at hard labor for not less than 30 years and not more than 60 years, and not more than 30 years, respectively. See Esteen , 01-0879, pp. 25-26, 821 So.2d at 76. Relator was sentenced to 50 years imprisonment at hard labor for each count of possession, and to 25 years imprisonment at hard labor for attempted possession. In 2001, La.R.S. 40:967(F)(1)(c) was amended to reduce the penalty for possession of cocaine over 400 grams to 15 to 30 years (and thereby reduce the penalty for the attempted offense to not more than 15 years. Therefore, three of relator's sentences are for terms of imprisonment that are no longer authorized by law.

Under Louisiana law, the term "illegal sentence" is "primarily restricted to those instances in which the term of the prisoner's sentence is not authorized by the statute or statutes which govern the penalty for the crime of conviction." Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 726, 193 L.Ed.2d 599 (2016) (internal quotes omitted) (quoting State v. Mead , 14-1051, p. 3 (La. App. 4 Cir. 4/22/15), 165 So.3d 1044, 1047 ). Because three of relator's sentences are for terms of imprisonment that are no longer authorized by law, and a more lenient penalty provision applies retroactively in accordance with La.R.S. 15:308(B), relator's remedy is by resentencing in the district court pursuant to his motion to correct illegal sentences. Accordingly, we reverse the district court's denial of relator's motion and remand for resentencing on these three counts pursuant to the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La.R.S. 15:308(B) apply retroactively under the circumstances enumerated in that section.

REVERSED AND REMANDED

JOHNSON, Chief Justice, additionally concurs and assigns reasons.

WEIMER, Justice, dissents and assigns reasons.

GUIDRY, Justice, dissents.

CLARK, Justice, dissents for reasons assigned by Justice Weimer and assigns additional reasons.

CRICHTON, Justice, additionally concurs and assigns reasons.

JOHNSON, C.J. additionally concurs and assigns reasons.

I fully agree with the majority opinion, which correctly overrules this court's opinion in State v. Dick , 06-2223 (La. 1/26/07), 951 So.2d 124. I dissented in Dick , believing the majority in that case ignored a clear mandate from the legislature. The majority in this case now corrects that error.

As I explained in my dissent in Dick , the legislature clearly expressed its intent in La. R.S. 15:308(B) by stating that, in the interest of fairness in sentencing, the more lenient penalty provisions shall apply to persons who were sentenced prior to June 15, 2001. 951 So.2d at 134 (Johnson, dissenting). The majority in this case correctly interprets the provisions in La. R.S. 15:308(B) and (C) to reach the result intended by the legislature. To hold defendant was limited to seeking relief from the committee on parole pursuant to La. R.S. 15:308(C), as suggested by the state, would create a completely discretionary system of implementation. The committee on parole is not required to apply the ameliorative provisions. Rather, the committee is directed to evaluate La. R.S. 15:308 applications and, "taking into consideration the risk of danger the applicant would pose to society if released from confinement," issue recommendations to the Board of Pardons regarding "whether the applicant is eligible for a reduction," as if La. R.S. 15:308 regulated parole eligibility, rather than mandatory retroactively reduced sentencing ranges.

The majority's opinion in this case is also consistent with the underlying reasoning of this court in State v. Mayeux , 01-3195 (La. 6/21/02), 820 So.2d 526. In Mayeux , defendant was arrested and charged with a violation of La. R.S. 14:98(E), DWI fourth offense. Subsequent to defendant's arrest, the legislature amended the statute's sentencing provisions, radically changing the way in which the offender serves the sentence imposed by the court. This court held that the district court erred in sentencing the defendant under the penalty provisions as they existed at the time of the defendant's DWI offense, rather than at the time of his conviction. In so doing, this court reasoned that although Louisiana courts have generally held that the law in effect at the date of the offense should control, the statutory language and legislative purpose behind the statutory amendment of La. R.S.14:98(G) dictated that the amendment be applied to those defendants having committed an offense prior to the effective date of the amendment. 820 So.2d at 529. Additionally, this court recognized the amendment was passed "in an effort to address the societal costs of drunken driving and a high per capita prison population." Id. at 527. Similarly, in this case, the language in La. R.S. 15:308(B) clearly directs when the amended penalty provisions are applicable by mandating they be applied retroactively to those offenders already sentenced. Further, in my view, the ameliorative amendments represent a significant shift in policy relative to drug offenses in this state and demonstrate that the legislature has chosen to impose more lenient sentencing provisions. The legislative enactment of La. R.S. 15:308(B) addressed the inequity between penalties for identical offenses committed before and after the amendments went into effect, by giving offenders who received the harsher sentences the opportunity to have their sentences reduced in accordance with the ameliorative legislation. See Dick , 951 So.2d at 135 (Johnson, dissenting).

When courts impose sentences exceeding the express sentencing provisions-either by mistake or, as in this case, because of a retroactive legislative mandate-the sentence must be considered illegal and courts are duty-bound to correct those sentences. Because defendant's sentences now exceed those set forth by the legislature, his sentences must be considered illegal and subject to correction by the courts. For these reasons and the reasons assigned by the majority, I find that defendant and other similarly-situated inmates are entitled to seek relief through the courts.

WEIMER, J., dissenting.

The majority's opinion ignores a statutory mandate enacted by the legislature and usurps the authority constitutionally granted to the executive branch. As a result, the statutorily-mandated vetting by the executive branch's committee on parole, which is tasked with determining whether the offender presents a danger to society, is stricken from the statute.

The legislature carefully established a vetting procedure, which involves an evaluation by the committee on parole prior to an offender receiving the benefit of a reduction in sentence. However, after this court's majority opinion for reducing certain criminal sentences, what is the role of the committee on parole? According to the majority opinion, there is no role whatsoever.

According to the mandate of the legislature in La. R.S. 15:308(C), however, any reduction in sentence or release from confinement is entirely within the discretion of the committee on parole, after the committee considers whether the offender has served sufficient time and the committee determines whether the offender presents a "risk of danger ... to society if released from confinement." La. R.S. 15:574.2(I)(1). According to this court's majority opinion, instead of the committee on parole making a case-by-case evaluation of an offender's danger to society, the court system is empowered to release an offender, and to do so without evaluating whether the offender has demonstrated conduct that presents a danger to society. Under the holding of the majority opinion, an offender's release is apparently automatic after petitioning a court to turn back the clock by applying shorter periods of incarceration than those that lawfully applied when the offender was sentenced.

This court has previously examined whether, based on the legislature's subsequent reduction of a criminal penalty, the judiciary can reduce criminal sentences that were lawful when imposed. See State v. Dick , 06-2223, 06-2226 (La. 1/26/07), 951 So.2d 124. This court concluded: "[A]llowing the courts to reduce the offenders' final sentences would, in effect, commute a valid sentence, a power the legislature knows to be constitutionally reserved to the executive branch." Id. , 06-2223, 06-2226 at 14, 951 So.2d at 133. In so ruling, this court was aligned with a majority of jurisdictions which have found that the power to reduce final sentences belongs to the executive branch.

The majority of this court now claims that Dick was wrongly decided because: 1) the legislature is authorized to set penalties; 2) the judiciary has the power to impose sentences; and 3) anything not prohibited by the constitution is allowed. See State ex rel. John Esteen v. State , 16-0949, op. at 236-37 (La. 1/30/2018). These three principles are certainly important, but the majority has misapplied them. By giving a straightforward effect to La. R.S. 15:308, there is no justification for overruling Dick because La. R.S. 15:308 contains a proper respect for the separation of powers. Indeed, the majority's opinion recites-with a parsing that inescapably requires involvement of the committee on parole-how the legislature invokes the authority of the executive branch of government:

Specifically, La. R.S. 15:308(B) mandates that the ameliorative provisions shall apply retroactively to offenders who are already sentenced while La. R.S. 15:308(C) entitles an offender to apply to the committee on parole, which will, "taking into consideration the risk of danger the applicant would pose to society if released from confinement," issue a recommendation to the Board of Pardons regarding "whether the applicant is eligible for a reduction." La. R.S. 15:574.2(I)(1) (emphasis added).

Esteen , op. at 235-36.

Notwithstanding the legislative mandate just quoted, the majority circumvents the committee on parole and tasks the judiciary with reducing lawfully imposed sentences. Such result requires ignoring the entirety of Section C of La. R.S. 15:308, by which the legislature invokes the authority of the executive branch of government, specifically, the authority of the committee on parole. In so doing, the majority also disregards another fundamental precept dictated by the legislature: "When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit." La. R.S. 1:4.

The result reached by the majority is all the more perplexing when one recognizes that the majority gives no effect to the committee on parole (whose authority is specifically mentioned in Section C of La. R.S. 15:308 ), yet simultaneously declares that the petitioner's sentence can be changed by the judiciary via a statute that is nowhere mentioned in La. R.S. 15:308 -namely La. C.Cr.P. art. 881.5 (dealing with correction of illegal sentences). To be fair, in a footnote, the majority purports to allow some authority to the committee on parole, inasmuch as the majority finds there is a class of sentences which "falls within the ranges of both the harsher and more lenient penalty provision[s]," and the majority declares that for such sentences, an "offender's avenue for relief is by application to the committee on parole." Esteen , op. at 237-38 n.4. In its footnote, however, the majority again does no service to longstanding law, as the majority's solution for a second class of offenses amounts to an advisory opinion for facts not presented here. "It is well-settled in the jurisprudence of this state that courts will not decide abstract, hypothetical or moot controversies or render advisory opinions with respect to such controversies." Shepherd v. Schedler , 15-1750, p. 13 (La. 1/27/16), 209 So.3d 752, 764.

For the facts at hand, I find the legislature has given a straightforward solution. In Section B of La. R.S. 15:308, the legislature has made available reduced sentences for certain non-violent offenses. The legislature has not made reduction of sentences for those crimes automatic, nor has the legislature tasked the courts with deciding whether to reduce such sentences or to release any offender. Instead, in Section C of La. R.S. 15:308, the legislature invokes the authority and duties of the parole board. Among those duties, one is noteworthy: "[T]o determine the time and conditions of release on parole of any person who has been convicted of a felony and sentenced to imprisonment, and confined in any penal or correctional institution in this state." La. R.S. 15:574.2(D)(1).

Regardless of whether any judge, myself included, may personally agree with efforts to avoid Louisiana being castigated as the "incarceration capital" of the nation, in our legal system, judges must act within the bounds established by the legislature and the constitution. Through its latest iteration of La. R.S.15:308, the legislature wisely recognized what the majority of this court does not. Release from or reduction of a lawfully-imposed sentence should not be automatic (as the majority of this court presently holds), but is instead made contingent on the case-by-case determination of the committee on parole (a component of the executive branch of government) and satisfaction of any conditions imposed by that committee. A most unfortunate result of the majority's ruling, which is tantamount to usurping the powers of the executive branch, but without the review procedures normally performed by the executive branch, is that potentially dangerous offenders will be released without the statutorily-mandated vetting. Thus, I respectfully dissent.

CLARK, J., Dissents for the reasons assigned by Justice Weimer and assigns additional reasons.

I respectfully dissent for the reasons assigned by Justice Weimer. I write separately to express my disagreement with a broad interpretation of La. R.S. 15:308. I believe that incarcerated inmates serving sentences pursuant to plea agreements with the state should not be eligible to seek a reduction in their sentences under La. R.S. 15:308.

Louisiana Code Crim. Proc. Art. 881.2 (A)(2) expressly provides that "[t]he defendant cannot appeal or seek review of a sentence imposed inconformity with a plea agreement which was set forth in the record at the time of the plea." Once a defendant is sentenced pursuant to a valid plea agreement, he is bound by the terms of the agreement and should have to serve that sentence.

Crichton, J., additionally concurs and assigns reasons.

I agree with and join in the per curiam in this matter. I write separately to acknowledge that I am cognizant of the logistical challenges this opinion may pose. However, I am ultimately convinced that the judiciary's "traditional, inherent, and exclusive" power to sentence within the range fixed by the legislature is paramount. State v. Rome , 96-0991, pp. 3-4 (La. 7/1/97), 696 So.2d 976, 978.

      These sections now provide:
      A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.
      (2) The legislature hereby further declares that Act No. 45 of the 2002 First Extraordinary Session of the Legislature revised errors in penalty provisions for certain statutes which were amended by Act No. 403 of the 2001 Regular Session of the Legislature and that these revisions were to be applied retroactively to June 15, 2001, and applied to any crime committed subject to such revised penalties on and after such date.
      B. In the interest of fairness in sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: R.S. 14:56.2(D), 62.1(B) and (C), 69.1(B)(2), 70.1(B), 82(D), 91.7(C), 92.2(B), 92.3(C), 106(G)(2)(a) and (3), 106.1(C)(2), 119(D), 119.1(D), 122.1(D), 123(C)(1) and (2), 352, and 402.1(B), R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii), 1303(B), and 1304(B), R.S. 27:262(C), (D), and (E), 309(C), and 375(C), R.S. 40:966(B), (C)(1), (D), (E), (F) and (G), 967(B)(1), (2), (3), and (4)(a) and (b), and (F)(1), (2), and (3), 979(A), 981, 981.1, 981.2(B) and (C), and 981.3(A)(1) and (E), and Code of Criminal Procedure Article 893(A) prior to June 15, 2001, provided that such application ameliorates the person's circumstances.

      See La. Const. art. 4, § 5 (E)(1) ("The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses."); see also La.Const. art. II, § 2 ("Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.").

      Cf. Way v. Superior Court , 74 Cal.App.3d 165, 177, 141 Cal.Rptr. 383, 391 (Ct. App. 3 Dist. 1977) ("We note that the motivation behind section 1170.2 is not consistent with commutation. The Legislature's objective, admittedly one within its power, is to restructure punishments for criminal conduct and to make them uniform to the extent reasonably possible. Having accomplished this as to future offenders, it then sought to avoid a condition which it deemed both undesirable and inconsistent with the concept of uniformity, that felons concurrently serving sentences for identical offenses be subject to disparate terms solely because of the time when they committed their crimes. It undertook no act of mercy, grace, or forgiveness toward past offenders, such as characterizes true commutations.").

      In fact, it appears that the legislature has created two distinct avenues for relief. First, as in this case, when an offender's sentence exceeds the maximum sentence allowed under the new penalty provisions, then that sentence is truly illegal and must be corrected by the district court. Second, when a sentence falls within the ranges of both the harsher and more lenient penalty provision (e.g. an individual sentenced to 15 years imprisonment for a crime that initially carried a range of 15-30 years, and where the ameliorated range falls between 0-15 years), that sentence is not illegal and that offender's avenue for relief is by application to the committee on parole pursuant to La.R.S. 15:308(C), through which, as we found in State v. Dick , "the legislature is suggesting to the executive branch that it should consider these ameliorative sentencing provisions when reviewing the offenders' applications ...." Id. , 06-2223, p. 14, 951 So.2d at 133.

      See State v. Philipps , 246 Neb. 610, 521 N.W.2d 913, 917 (1994) ("[T]o interpret a statute such that it would reduce, without the approval of the Board of Pardons, a sentence imposed prior to its enactment would render the statute unconstitutional, for it would permit a legislative invasion of the power of commutation constitutionally consigned to the board."); State v. Cummings , 386 N.W.2d 468, 472 n.2 (N.D. 1986) ("Legislation lessening punishment may not be applied to final convictions because this would constitute an invalid exercise by the Legislature of the executive pardoning power."); Bossie v. State , 488 A.2d 477, 480 (Me. 1985) (holding that the power to commute sentences was "explicitly and exclusively granted to the executive."); Commonwealth v. Sutley , 474 Pa. 256, 378 A.2d 780, 782, 789 (1977) (holding that a statute reducing sentences for marijuana possession "operated as a legislative impairment of existing final legal judgments," while also noting "there is no power of pardon or commutation in the legislature and... the power is specifically and singularly granted to the executive branch"); State ex rel. Smith v. Blackwell , 500 S.W.2d 97, 103 (Tex. Crim. App. 1973) (holding that a statute reducing the sentences for marijuana offenses resulted in "commutation" and, therefore, violated the Texas Constitution, which "plac[ed] the power of clemency in the hands of the Governor, acting upon the recommendation of the Board of Pardons and Paroles."); People v. Herrera , 183 Colo. 155, 516 P.2d 626, 628 (1973) (holding that "[t]he power of commutation ... is the power to reduce punishment from a greater to a lesser sentence," and this power was exclusive to the governor); Whittington v. Stevens , 221 Miss. 598, 73 So.2d 137, 140 (1954) (holding that, although "the legislature was prompted by the highest humanitarian motives," statute providing for reduction of sentence based on physical disability of prisoners was "held to be unconstitutional as an infringement upon the pardoning power vested in the governor.").

      See La. Const. art. II, § 2 ("Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others."); see also La. Const. art. IV, § 5 (E)(1) ("The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, [and] pardon those convicted of offenses against the state ....").

      It should also be noted that sentences that were for a lawful duration when imposed, such as the relator's sentences, are not illegal sentences:
      This court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright , 384 So.2d 399, 401 (La. 1980). A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse , 426 So.2d 118, 130-131 (La.1983).
      State v. Sugasti , 01-3407, p. 4 (La. 6/21/02), 820 So.2d 518, 520.
      Here, by derogating from these previously-recognized principles, the majority opinion profoundly alters and expands the concept of illegal sentences for purposes of La. C.Cr.P. art. 881.5.

      Parenthetically, I note that the role of Louisiana's committee on parole differs from the role of California's Community Release Board, as the latter's role is described in Way v. Superior Court , 74 Cal. App. 3d 165, 141 Cal.Rptr. 383 (Ct. App. 1977). For justification in overruling this court's decision in Dick , the majority relies heavily on Way . However, as described in Way , newly enacted legislation required, as the default ruling of the Community Release Board, to set a release date consistent with more recently enacted and lesser periods of incarceration. Way , 74 Cal. App.3d at 171-72, 141 Cal.Rptr. 383. Only if "two members of the Community Release Board ... determine that ... [he] should serve a [longer] term" would an offender be required to serve a longer term. Id . at 172-73, 141 Cal.Rptr. 383, 391. Thus, the procedure envisioned by the Louisiana Legislature provides no default ruling by the committee on parole and hence empowers the committee with greater discretion.

      See generally Louisiana could soon lose title as incarceration capital, with or without reforms , The Advocate (May 23, 2017), available at http://www.theadvocate.com/baton_rouge/news/politics/legislature/article_c79ad504-3f23-11e7ac58-fb249f8e45fe.html.