Opinion
No. 2000-KA-1367.
August 1, 2001.
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. D-30584-89, SECTION "C" HONORABLE SHARON K. HUNTER, JUDGE.
Annabelle H. Walker, Deputy City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Mavis S. Early, City Attorney, New Orleans, Louisiana, COUNSEL FOR CITY OF NEW ORLEANS.
Evan F. Trestman, New Orleans, Louisiana, -and- Daniel S. Foley, New Orleans, LA, -and- C. Michael Winters, Metairie, LA, COUNSEL FOR THE TRESTMAN FAMILY.
(Court composed of Judge Charles R. Jones, Judge Miriam G. Waltzer, and Judge Patricia Rivet Murray)
Defendant/Appellant, the City of New Orleans (hereinafter "City"), appeals the judgment of the district court which upheld the constitutionality of LSA-R.S. 44:3 (F), which allows family members of a murder victim to discover all records of a governmental agency relevant to the investigation of the death of the victim, after the passage of ten years after the crime. After reviewing the record, we find that the legislation at issue is not special legislation; thus, we affirm the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
Israel Trestman was murdered on April 24, 1989, in New Orleans, Louisiana. An extensive investigation relative to the murder of Mr. Trestman was conducted, but the New Orleans Police Department (hereinafter "NOPD") was unable to arrest a suspect in connection with its investigation of this crime. Therefore, on February 10, 2000, Mr. Trestman's son, Evan, along with Mr. Trestman's widow, Roslyn Trestman, filed an application in the Orleans Parish Criminal District Court to obtain the records, files, and evidence pertaining to the investigation of Mr. Trestman's death. The application was filed pursuant to LSA- R.S. 44:3 A(1) as amended and reenacted, and 44:3 (F) as amended by Act 484 of the Regular Session of the 1999 Legislature.
Though the Trestmans' application was initially granted, the district court, on May 5, 2000, vacated its order, stayed the enforcement of its order, and set the matter for a contradictory hearing in light of the City's Motion to Dismiss or Quash the Application. Following oral arguments, the district court affirmed its original judgment by finding that the statute was constitutional and that the Trestmans were entitled to discover the records relative to the NOPD's investigation of Israel Trestman's death beginning on May 15, 2000. It is from this judgment that the City filed the instant suspensive appeal.
a. Statutory Intent
In its pleadings and arguments before this Court, the City argues that the statute in question is an unconstitutional infringement upon the City's police powers as it pertains to the facts and circumstances of the instant case. In essence, the City asserts that turning over the files to the victim's immediate family members would drastically jeopardize the City's ability to adequately prosecute the case. The City also contends that compliance with the statute could place the Trestmans in grave danger of physical harm. For instance, the City contends that the Trestmans could be harmed if they relinquished information to someone who may actually be a suspect in the case or if they confronted an individual who they believed murdered their loved one. More specifically, the City argues that the crime of first degree murder has no statute of limitations; therefore, the City still has the obligation and authority to continue to prosecute this crime without surrendering the fruits of its investigation.
The City argues that allowing the Trestmans to review the records when the case is not officially closed would only delay and further interfere with the prosecution of the case. Moreover, the City argues that presenting testimony regarding the on-going nature of its investigation would also be a disclosure of its records — especially if these witnesses are to be cross-examined in detail by the Trestmans' attorneys. The City further argues that the legislature's passage of the statute does not in and of itself make the statute constitutional because a safeguard was built into the law to require the criminal judge's approval of the family's inspection. Finally, the City argues that the statute violates the prohibition against the passage of local or special laws, particularly when the statute impacts those civil or criminal actions that are still pending.
In response, the Trestman family argues that the legislature was fully aware of the fact that homicides do not have a prescriptive period, and that they were not looking to prevent the NOPD's investigation of the case. However, the Trestmans argue that, notwithstanding the NOPD's statutory mandate to investigate crimes within its jurisdiction, the law imposes upon the NOPD the obligation to allow its files to be reviewed by those individuals whose loved one was murdered ten years or longer without a conviction having been effectuated. The Trestmans further argue that the statute's intent was not to usurp the authority of the police department, but to aid it by allowing members of the statutory class to assist physically and financially in bringing the murderer to justice and providing closure to the affected family. Additionally, the Trestmans dispute the City's classification of the statute as "special legislation," because the statute allows any family that meets the statutory prerequisites to discover the police's documents. We agree.
LSA-R.S. 44:3 provides in pertinent parts the following:
A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, or intelligence agencies of the state, which records are: (1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled, except as provided in Subsection F of this Section
B. All records, files, documents, and communications, and information contained therein, pertaining to or tending to impart the identity of any confidential source of information of any of the state officers, agencies, or department mentioned in Paragraph A above, shall be privileged , and no court shall order the disclosure of same except on grounds of due process or constitutional law.
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C. Whenever the same is necessary, judicial determination pertaining to compliance with this section or with constitutional law shall be made after a contradictory hearing provided by law. An appeal by the state or an officer, agency, or department thereof shall be suspensive.
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F. Notwithstanding any other provision of law to the contrary, after a period of ten years has lapsed from the date of death of a person by other than natural causes and upon approval by the district court having jurisdiction over any criminal prosecution which may result due to the death of such person, any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative files or evidence or potential evidence, or any other record, document, or item relating to said death shall, upon request, provide copies of all such files records, and documents to immediate family members of the victim and shall provide unlimited access for any and all purposes to all such evidence, potential evidence, and other items to any member of the immediate family and to any person or persons whom any member of the immediate family has designated for such purpose. The access granted shall include but not be limited to the examination, inspection, photographing, copying testing, making impressions, and the use in any court proceeding of and conducting forensic studies on such evidence, potential evidence, and other items. For the purposes of this Subsection, the term "immediate family" shall mean the surviving spouse, children, grandchildren and siblings of the victim.
(Emphasis added). Normally, the records of a law enforcement agency that pertain to pending criminal litigation are not discoverable or subject to inspection by the public under the Public Records Act, unless, a court of competent jurisdiction determines that such discovery or inspection is mandated. See LSA-R.S. 44:1 et seq.; State v. Lutcher, 96-2378 (La.App. 1 Cir. 9/19/97), 700 So.2d 961. See also Loewenwarter v. Morris, 420 So.2d 550 (La.App. 4 Cir. 1982). Nevertheless, the determination of whether a specific record is a record pertaining to pending criminal litigation, and is thus exempt from disclosure, must be made on a case-by-case basis and is subject to judicial review. Johnson v. Stadler, 97-0584 (La.App. 1 Cir. 12/22/98), 754 So.2d 246; see generally, Elliot v. Taylor, 614 So.2d 126 (La.App. 4 Cir. 1993). However, LSA-R.S. 44:3 granted the immediate family members of a murder victim whose death occurred ten years ago access to "any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative files or evidence or potential evidence, or any other record, document, or item relating to said death". LSA-R.S. 44:3(F). It was undisputed at the hearing that over ten years has elapsed since the murder of Israel Trestman. Additionally, the Trestmans were the proper parties to institute this action since they satisfied the "immediate family" requirement in the statute. Therefore, we find that the district court's decision to allow the Trestmans to discover the requested documents was not error.
The purpose of the Public Records Law is intended to enforce [the] public's fundamental, constitutional right to public records in [the] most expansive and unrestricted way possible. Alliance For Affordable Energy v. Frick, 96-1763 p. 4, (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1130.
b. Special Legislation
LSA-Const. Art. III, sec. 12(A) prohibits the passage of local or special laws. In Kimball v. Allstate Ins. Co., 97-2885, 97-2956, p. 4 (La. 4/14/98), 712 So.2d 46, 51 the Louisiana Supreme Court opined that "a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class [and it is] directed to secure some private advantage or advancement for the benefit of private persons." Additionally, a special law is one that confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law. Local or Special Legislation, 36 La.L.Rev. 549. In other words, if the restrictions can affect only a portion or a fraction of the citizens or property within the created classification , and there is no reasonable basis for the creation of the classification, then the law is unconstitutional. Id. (Emphasis added).
On the other hand, a general law is one that operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class, which has been founded upon a reasonable classification. Kimball, 712 So.2d at 52. In Kimball, plaintiff sustained injuries in an automobile accident, and brought suit against the other motorist and the City of Baton Rouge. The City of Baton Rouge requested a jury trial pursuant to LSA-R.S. 13:5105, and the plaintiff filed a motion to strike the jury. In granting the motion, the district court found that the statute was unconstitutional because it could not be retroactively applied. The appellate court reversed the district court and remanded the matter for a hearing on the constitutionality of the statute.
However, the Supreme Court on review found that the statute was a special law because it singled out the City of Baton Rouge and the parish of East Baton Rouge to the exclusion of all other political subdivisions which possessed the requisite characteristics of the class. Moreover, the Supreme Court found no apparent justification for the disparate treatment of lawsuits in which the City of Baton Rouge and the Parish of East Baton Rouge were made defendants.
The real distinction between public or general laws and local or special laws is that the former affect the community as a whole, whether throughout the State or one of its subdivisions; and the latter affect private persons, private property, or private or local interests. Polk v. Edwards, 626 So.2d 1128, 1135 (La. 1993), citing State ex rel. Grosch v. New Orleans, 211 La. 241, 29 So.2d 778 (1947). The Supreme Court in Polk further stated that laws pertaining to matters of statewide concern or laws affecting persons throughout the state have been classified as "general" laws. Id.
Here, we find that the amendment to LSA-R.S. 44:3, which allowed a victim's immediate family members to discover the law enforcement agency's investigative documents of homicides which occurred ten years ago or longer are indeed of statewide concern and affect more Louisiana citizens than just the Trestmans. The statute does not isolate certain localities or jurisdictions where citizens can evaluate such documents. In fact, this right is extended to every bereaved family that finds itself in this unfortunate position. We find no merit to the City's argument that there is no reasonable basis for the creation of this statute since every Louisiana citizen who has been the victim of crime would not be able to enjoy the fruits of this statute. When a Louisiana citizen has lost an immediate family member due to a murder that occurred at least ten years ago, then that citizen may also petition the court to discover and review the law enforcement agency's investigative records — just like the appellees herein. Accordingly, we find that LSA-R.S. 44:3 (F) is a general law which pertains to all citizens that satisfy the above-mentioned prerequisites.
Having found that the legislation at issue is a "general" law, the City's assignment of error that notice was not given to the City when the Louisiana Legislature introduced Act 484 in the 1999 Legislative Session is moot. Thus, if legislation is general rather than local or special, neither the prohibitions regarding the enumerated subjects nor the requirement for local advertisement apply. See Polk, supra; see also Teacher's Retirement System, v. Vial, 317 So.2d 179 (La. 1975).
DECREE
For the foregoing reasons, we affirm the judgment of the criminal district court.
AFFIRMED Murray, J., Dissents With Reasons Waltzer, J., Concurs With Reasons
While I agree that the judgment of the trial court should be affirmed, I write separately to concur, because I feel compelled to emphasize that I am convinced that LSA-R.S. 44:3 is not "special legislation" within the meaning of La. Const. of 1974, art. III, § 13. To consider the legislation to be "special" would place a significant part of Louisiana's criminal justice system in jeopardy.
A guiding principle, I believe, is found in LSA-R.S. 44:31, which provides in pertinent part:
A. Providing access to public records is a responsibility and duty of the . . . 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, or obtain a reproduction of any public record.
(2) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian. [Emphasis added.]
Thus, the legislature clearly requires that the RULE is disclosure, and places on the party resisting disclosure the burden of proving a specific exception to that rule. One such exception is found in LSA-R.S. 44:3, which protects, inter alia, confidential sources in criminal litigation and, of particular relevance to this case, "Records pertaining to pending criminal litigation . . ., except as otherwise provided in Subsection F of this Section." The legislature makes clear that this exception to the general principle of open disclosure has its own exception, LSA-R.S. 44:3 F, which provides:
Notwithstanding any other provision of law to the contrary, after a period of ten years has lapsed from the date of death of a person by other than natural causes, and upon approval by the district court having jurisdiction over any criminal prosecution which may result due to the death of such person, any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative files or evidence or potential evidence, or any other record, document or item relating to said death shall, upon request, provide copies of all such files, records, and documents to immediate family members of the victim and shall provide unlimited access for any and all purposes to all such evidence, potential evidence, and other items to any member of the immediate family and to any person or persons whom any member of the immediate family has designated for such purposes. The access granted shall include but not be limited to the examination, inspection, photographing, copying, testing, making impressions, and the use in any court proceeding of and conducting forensic studies on such evidence, potential evidence, and other items. For the purposes of this Subsection, the term "immediate family" shall mean the surviving spouse, children, grandchildren, and siblings of the victim. [Emphasis added.]
According to the Historical and Statutory Notes accompanying LSA-R.S. 44:3, Acts 1999, No. 484, § 1 inserted in paragraph A (1), "except as otherwise provided in Subsection F of this Section" and added Subsection F relating to provision of evidence to the victim's family ten years after the date of the victim's death from other than natural causes. Section 2 of Acts 1999, No. 484 provided:
The provisions of this Act are procedural and remedial in nature and shall be applicable to records and investigative reports, files, evidence, potential evidence, or any other record, document, or item compiled, prepared, or obtained prior to the effective date of this Act.
Act 484 became effective on 18 June 1999, upon signature of the Governor.
There is no question that, although Mr. Israel Trestman died of apparently unnatural causes on 24 April 1989, the State has not charged anyone with his homicide. The request for public record information made by his widow and son on their own behalf and on behalf of their designees falls squarely within the terms of Subsection F.
In its attempt to resist disclosure of the public records in Mr. Trestman's case, the City of New Orleans, apparently as custodian of the records of the New Orleans Police Department, contends that Act 484 of 1999 is unconstitutional. The City has asserted various other claims in an attempt to convince this Court to reverse the judgment of the trial court. The City asserts, inter alia, that Act 484 is a "special law", subject to certain restrictions by La. Const. of 1974, art. III, § 12(A)( 3) and § 13. Section 12(A)(3) provides:
The record does not disclose that the City complied with the requirement that the Louisiana Attorney General be notified of the constitutional challenge.
Except as otherwise provided in this constitution, the legislature shall not pass a . . . special law:
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(3) Concerning any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court, or changing the rules of evidence in any judicial proceeding or inquiry before courts, or providing or changing methods for the collection of debts or the enforcement of judgments, or prescribing the effects of judicial sales.
Section 13 provides that a special law may be enacted with certain notice; however, there is no indication that the legislature gave Section 13 notice in connection with its enactment of Act 484.
The gravamen of appellant's appeal is that Act 484 is "special" within the meaning of the Louisiana Constitution of 1974 because it carves out a narrow class (immediate families of murder victims) whose members are granted a privilege with respect to records that is denied members of the general public. The City also suggests that because victims of other violent crimes, and their families, are not accorded this same access, the statute is constitutionally defective.
The City relies on three decisions of the Louisiana Supreme Court:Teachers' Retirement System of Louisiana v. Vial, 317 So.2d 179 (La. 1975); State v. Labauve, 359 So.2d 181 (La. 1978); and Kimball v. Allstate Insurance Company, 97-2885 (La. 4/14/98), 712 So.2d 46. A close reading of these cases convinces me that they do not support the City's argument.
In Vial, the daughter of a deceased retired teacher contended that the statutory retirement plan allowing disposition of her mother's accumulated contribution was a "special law" under the prior Louisiana Constitution of 1921 in that it changed the law of descent or succession and gave effect to informal or invalid wills or deeds, or to any illegal disposition of property. See, La. Const. of 1921, art. IV, § 4. The court held:
General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. 317 So.2d at 183.
Applying that principle to the Trestman case, the salient question is whether the class of persons (immediate family of murder victims) is "reasonable and proper." I find it quite reasonable in this context to treat the immediate families of murder victims differently than victims of other crimes, no matter how violent or otherwise heinous. The victim can no longer speak for himself. He can no longer affect the pursuit of the perpetrator or the conduct of the investigation. His family has suffered the total and complete loss of their relative. Although the writers of purple prose refer to a "fate worse than death," in the secular realm death is the ultimate finality. No other crime is like murder, and murder is treated differently than other crimes, even crimes of violence. By way of illustration only, examples include the different treatment accorded to various types of homicide with regard to penalties, availability of probation, parole and good time, statutes of limitation and the availability of diversionary programs.
The Vial opinion defines a "special law":
In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the case. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons. Id.
The Supreme Court held that the retirement laws were not special laws, noting that the retirement system
is founded upon a classification that embraces, without exception, all teachers in state public schools. This classification is reasonable and applies uniformly to persons possessing the controlling characteristic of the class, viz., employment as a teacher within the public schools of Louisiana. Accordingly, the statute is a general law. Id.
To apply this case to the instant one is clearly contrary to the Supreme Court's decision in Vial and would label the retirement system a special law, since it applies only to public school teachers and not to those who teach in private schools, or who are ancillary employees such as bus drivers and cafeteria workers in the public schools. Accordingly, I conclude that Vial supports the Trestman family's position in the instant case.
Labauve was decided under the Constitution of 1974. Labauve was convicted of violating a gill net law, LSA-R.S. 56:409, was sentenced to pay a $400 fine, and contended that the law was a "local special law" under La. Const. of 1974, art. III, § 12( 10), providing that the legislature shall not pass a special law defining any crime. The Supreme Court did not address the "special law" issue, finding that the gill net law is a local law insofar as it prohibits gill nets only in portions of Terrebonne and Lafourche parishes south of the Intracoastal Canal. Since the law did not apply to similarly situated other parishes, or to similar locations within the affected parishes, it did not withstand constitutional scrutiny. The per curiam opinion of a sharply divided court held that the statute is "plainly a local law defining a state crime applicable only to a given locality, in violation of the express provision and the intended prohibition of Article 3, Section 12."Labauve, 359 So.2d at 184.
Applying the principles expressed in that opinion to the instant case, I find the same distinction as that present in Vial. The court implicitly found the classification of certain portions of two parishes to be arbitrary and without reason. In the context of the "local law" issue, the unreasonable carving out of a particular geographic area for special treatment, while leaving other areas similarly situated unaffected by the legislation is on its face arbitrary and unreasonable. For the same reasons discussed in relation to Vial, the creation of a class of murder victims' immediate families is not arbitrary. Therefore, Labauve does not support the City's position.
The Kimball opinion, likewise, does not support the City's argument. The Supreme Court struck down LSA-R.S. 13:5105(C), finding it to be a "special law" within the meaning of La. Const. of 1974 art. III, § 12(A)( 3), concerning any civil actions. LSA-R.S. 13:5105 (A) prohibits jury trial in suits against political subdivisions of the state. Subsection (C) was enacted in 1995 to provide an exception to that prohibition upon timely demand for jury trial filed in accordance with law by the city of Baton Rouge or the parish of East Baton Rouge or by a plaintiff who has filed a petition against the city of Baton Rouge or parish of East Baton Rouge.
The Supreme Court quite properly held this to be a special law, there being no rational basis for carving out an exception for that particular parish and city in spite of their similar situations to other parishes and cities in this state. The court rejected the notion that this was a "local law," noting that even though a law whose operation is limited to certain parishes is immediately suspect as a local law,
[A] law is not local, even though its enforcement may be restricted to a particular locality or localities, where the conditions under which it operates simply do not prevail in other localities. Kimball, p. 5,712 So.2d at 51.
By analogy to the instant case, the conditions under which a law relates to murder clearly do not prevail in other types of crime. For example, the victim is unavailable to assist the investigation and prosecution. The crime itself is not subject to a statute of limitations. The nature of the crime provides no opportunity for any compensation to the victim or meaningful compensation to his family.
The Supreme Court noted that a law may be general although limited to one locality if the coverage can extend to other areas should the requisite criteria exist there as well or if its operation is limited to a locality through the effect of a reasonable classification such as population, size or physical characteristics and not solely through the specific designation of a certain parish or parishes. It may confine its coverage "to a class or subset of local governments so long as the law applies to all members of the class and the method of classification the law uses is reasonable." Id.
In discussing the "special law" issue, the Supreme Court noted:
Generally speaking, a special law is one which operates upon and affects only a fraction of the persons or a portion of the property encompassed by a classification, granting privileges to some persons while denying them to others [Citation omitted.] ("[A] special law is one that confers particular privileges, . . . upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law. [Citations omitted.] A statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class . . . [and it is] directed to secure some private advantage or advancement for the benefit of private persons.") As with a law which classifies on the basis of geographic conditions or particularly designated localities, classification of certain parties will not render the law special if it is based on a substantial difference between the class created and the subjects excluded, and there is a reasonable basis for the distinction. . . . In sum, a law will be considered . . . special, . . . where its restrictions can affect only a portion of the citizens . . . embraced within the created classification [citation omitted] where there is no reasonable basis for the creation of the classification or substantial difference between the class created and the subjects excluded justifying the exclusion. [Emphasis added.] Kimball, p. 6, 712 So.2d at 52.
I do not find that explicitly or otherwise the classification of murder victims families, as distinguished from the families of victims of other, lesser crimes, to be unreasonable. However, as discussed above, I am convinced that the benefit conferred by the legislature is based upon a totally reasonable classification. Under the Kimball rationale, the legislation would become a special law if, for example, it applied only to this particular family, the widow and son of Mr. Trestman, or only to families of murder victims only who live in a certain area similarly situated with areas to which the law would not apply.
Indeed, if we were to agree with the City's position that murder victims' families may not be treated differently from victims of other (presumably violent) crimes, were to be accepted as a general principle, all laws imposing different penalties for different (presumably violent) crimes would be invalidated as special laws. Such a ruling would also eliminate the unlimited suspension of prescription and statutes of limitations applicable in the case of certain homicides. The special law prohibition would likewise be the basis for striking down those laws relating to probation, parole, diversionary programs and the like which treat murder differently than other crimes. Such a result is abhorrent, unreasonable and contrary to the plain meaning of the Louisiana Constitution and the jurisprudence thereunder.
I respectfully concur.
Because the classification created by La.R.S. 44:3 F is not based upon a meaningful distinction related to the public policies reflected in the Public Records Act, I do not agree with the conclusion that this statute is a general law. I, therefore, must respectfully dissent from the determination that R.S. 44:3F is constitutional.
As the majority acknowledges, Article III, Section 12 A(3) of the Louisiana Constitution prohibits the enactment of legislation that "confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law." Alton Johnson, III, Local or Special Legislation, 36 La.L.Rev. 549 (1976); see also State v. Labauve, 359 So.2d 181, 182 (La. 1978). Because La.R.S. 44:3 F inures to the benefit of the immediate family of any murder victim where ten years has elapsed since the death, the majority concludes that this statute does not confer any private advantage on any particular private person or serve any special interest, and thus is a general law.
In my view, however, there is no question that this statute carves out a narrow class whose members are granted a privilege with respect to records of investigative and other governmental agencies that is denied members of the general public. This class, unlike the general public or even family members or victims of crimes other than murder, is granted unfettered access to the records, evidence and potential evidence in the hands of any governmental agency once ten years have elapsed, whether or not criminal prosecution is imminent or even in progress.
A legislative enactment that distinguishes between citizens cannot be considered a general law unless the classification it creates is founded on a reasonable basis. Kimball v. Allstate Ins. Co., 97-2885, p. 6 (La. 4/14/98), 712 So.2d 46, 52. Such a determination can only be made in the context of the public policy reflected in the statute at issue. In this case, the class created by La.R.S. 44:3 F, immediate family members of murder victims, is founded on a reasonable basis only if the established public policy of non-disclosure is not undermined by the special treatment afforded that class.
The Public Records Act affords to any person of the age of majority the right to inspect, copy or reproduce or obtain a reproduction of any public record. La.R.S. 44:31. The legislature explicitly limited this right of access for certain records of "prosecutive, investigative and law enforcement agencies." La.R.S. 44:3. Such agencies are not required to disclose records, or the information contained therein, that pertain to pending criminal litigation or "any criminal litigation that can reasonably be anticipated," until there is a final adjudication or settlement of such litigation. La.R.S. 44:3 A(1). By making the records of prosecutive, investigative and law enforcement agencies inviolate under these circumstances, the legislature has determined that the public's general right of access must be subordinated to the State's interest in protecting such records until criminal prosecution is completed or is no longer reasonably anticipated. Therefore, in order to find that the distinction created by La.R.S. 44:3 F is a reasonable one, it is necessary to conclude that the State's interest in protecting its investigative files is less compelling when the crime investigated is murder. That conclusion, in my opinion, is not warranted.
The State's interest in protecting its files in a murder investigation is no less compelling than it is in the investigation of any other crime. Because the statute of limitations never runs on murder, the potential for prosecution never completely disappears. Consequently, the State's interest in protecting murder investigation files from disclosure, including disclosure to the victim's family, is even more compelling. Although the likelihood that a crime will be solved diminishes with the passage of time, murders have been solved and prosecutions instituted many years after the crime is committed. In an effort to assist them in their efforts to solve a crime, law enforcement agencies routinely withhold details of a murder from the public. It is not uncommon for family members to be suspects in such investigations. In addition, family members may be motivated to protect other family members. Therefore, the disclosure mandated by La.R.S. 44:3 F, which is required even if a prosecution is imminent or even ongoing, seriously undermines law enforcement's ability to successfully prosecute murder cases. Thus, when considered in the context of the public policy that prompted the legislature to exempt the records of criminal investigations by law enforcement agencies from disclosure, the classification created by La.R.S. 44:3 F is not a reasonable one.
Moreover, it cannot be denied that the family members of murder victims have been selected arbitrarily to enjoy the privilege of unlimited access under this enactment. Although I have great sympathy for the Trestman family, as well as all other families of murder victims, their need for closure is no more compelling than that of a rape victim or the family of a kidnap victim. Indeed, anyone who is the victim of a violent crime conceivably would wish to have unfettered access to government files, evidence or potential evidence relating to the crime committed against them. Unfettered access, however, is granted only to family members of murder victims by R.S. 44:3 F.
Unlike the members of the class created by this statute, a member of the public, including family members or victims of crimes other than murder, regardless of how much time has elapsed, may not have access to such records if the governmental agency contends that the same pertain to pending or reasonably anticipated criminal litigation. La.R.S. 44:3 A(1). The only recourse for someone who is not a member of the class created by La.R.S. 44:3 F is to seek a judicial determination, following a contradictory hearing, that the denial is not in compliance with the statute or constitutional law. La.R.S. 44:3 C; 44:35. Consequently, the classification created by this statute is not "based on a substantial difference between the class created and the subjects excluded," as required by Article III, Section 12 A(3) of the Constitution.
R.S. 44:3 F requires similar approval of the district court having jurisdiction over any criminal prosecution that may result from the death at issue. However, because Section F sets forth the criteria for access, the court's role under this legislation is limited to ensuring that the disclosure sought related to the death of a person by other than natural causes, that the party seeking disclosure was an immediate family member, and that ten years had passed since the death.
Local or special laws that are not prohibited by Article III, Section 12 may be enacted, but only if certain notice requirements are met. Kimball, supra at p. 4 n. 3, 712 So.2d at 50. Specifically, such legislation may not be enacted "unless notice of the intent to introduce a bill to enact such a law has been published on two separate days. . . . The last day of publication shall be at least thirty days prior to introduction of the bill. The notice shall state the substance of the contemplated law." La. Const. art. III, § 13. Because the legislature did not comply with these notice requirements when it enacted this special legislation, the statute should be declared unconstitutional.
In summary, I have concluded that La.R.S. 44:3 F is special legislation, subject to the notice requirements of Article III, Section 13 of the Constitution. The legislature did not comply with those notice requirements when it enacted this statute, which, as a result, is unconstitutional. Accordingly, I would reverse the judgment of the district court holding otherwise.