Opinion
NO. 19-C-359
10-21-2019
IN RE: MATTER UNDER INVESTIGATION BY THE JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL CONSOLIDATED WITH MARK SPEARS v. JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL
Susan Buchholz First Deputy Clerk IN RE JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 789-232 C/W 793-101 Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.
WRIT GRANTED FOR LIMITED PURPOSE; JUDGMENT VACATED AND MATTER REMANDED
Relator, the Jefferson Parish Office of Inspector General ("JPOIG"), seeks this Court's supervisory review of the trial court's June 21, 2019 judgment granting the petition for declaratory judgment filed by Mark Spears, an elected member of the Jefferson Parish Council, and ordering the JPOIG's office to provide to Councilman Spears a "fair description of the subject matter of the subpoena ad testificandum, and of any documents to be reviewed during his interview, so that he may assert any legislative privilege that may exist prior to being interviewed." For the following reasons, we grant the JPOIG's writ application for the limited purpose of vacating the trial court's June 21, 2019 judgment, and remand the matter for further proceedings consistent with this writ disposition.
The JPOIG is an office within the Jefferson Parish Government created by local ordinance, Jefferson Parish Code of Ordinances ("JPCO") § 2-155.10, pursuant to authority granted by the Jefferson Parish Charter § 4.09 and state law. La. R.S. 33:9611 et seq. Pursuant to La. R.S. 33:9613(A)(1), the JPOIG may make investigations and examinations, within or outside of the State of Louisiana as it deems necessary, in order to carry out the duties of its mandate under law, and may gather evidence in any legally appropriate manner. La. R.S. 33:9613(A)(3) provides that in the performance of its duties, an "office of inspector general may compel the attendance of witnesses to be deposed under oath" by "issuing a subpoena" upon judicial approval from the district court. If a person refuses to obey a subpoena issued by the JPOIG, the district court may issue an order requiring the person to appear before the court to show cause why an order shall not be issued ordering such person to obey the subpoena. La. R.S. 33:9613(A)(3).
The JPOIG is designated as a law enforcement agency possessing all investigative powers and privileges attendant to a law enforcement agency under state law as necessary and in furtherance of the authority, duties, powers and functions granted to the JPOIG. See JPCO § 2-155.10(7)(c) and La. R.S. 33:9612.
Councilman Spears, as an elected official of Jefferson Parish, is subject to the jurisdiction of the JPOIG. La. R.S. 33:9613. It is the duty of every Parish official to cooperate with the JPOIG in any investigation. JPCO § 2-55.10(19). According to the JPOIG's writ application, commencing in 2018, the JPOIG has made attempts to schedule the interview of Councilman Spears in relation to an open matter under the investigative jurisdiction of the JPOIG to no avail.
On November 30, 2018, pursuant to La. R.S. 33:9613(A)(3), the JPOIG initiated a summary proceeding by filing a motion for subpoena ad testificandum in the 24th Judicial District Court for the Parish of Jefferson, captioned In re matter under investigation by the Jefferson Parish Office of Inspector General, civil action number 789-232, Division "I," seeking judicial approval for the issuance of a subpoena to Councilman Spears. An order was entered that same day authorizing the JPOIG to issue the subpoena. On December 5, 2018, Councilman Spears was served with the subpoena ad testificandum commanding him to appear at the JPOIG's office on December 7, 2018 to be interviewed under oath. Councilman Spears did not appear for the interview. Consequently, on December 12, 2018, the JPOIG filed a "Motion for Show Cause Hearing on Subpoena Ad Testificandum," which the court set for hearing on January 10, 2019. On December 28, 2018, Councilman Spears filed an unopposed motion to continue and reset the hearing; the matter was continued without date.
Though La. R.S. 33:9613(A)(4)(c) provides the person served with the subpoena the opportunity to file a motion to amend or quash the subpoena, Councilman Spears chose not to avail himself of this option. Instead, on March 14, 2019, Councilman Spears initiated an ordinary proceeding in the 24th Judicial District Court for the Parish of Jefferson by filing a petition for declaratory judgment against the JPOIG, captioned Mark Spears vs. Jefferson Parish Office of Inspector General, civil action number 793-101, Division "A," regarding the scope of the subpoena ad testificandum served upon him in the matter pending in Division "I." Specifically, Councilman Spears sought a declaration that, prior to being interviewed, he is entitled to a fair description of the subject matter of the subpoena ad testificandum, and of any documents to be reviewed in connection with his interview, in order that he may be able to evaluate whether the subject matter or documents may be subject to any existing legislative immunity or privilege afforded to him by law.
On March 27, 2019, the JPOIG filed a "Motion to Reset Show Cause Hearing on Subpoena Ad Testificandum." The JPOIG's motion also sought sanctions "for certain representations made in pleadings and for failing to give notice to the court of a pending matter involving the same parties in accordance with the Uniform Rules of District Court, Rule 9.4." The JPOIG's motion was "fixed for hearing/trial" on April 25, 2019. Councilman Spears filed an opposition to the JPOIG's motion on April 22, 2019.
The hearing on the JPOIG's rule to show cause on subpoena ad testificandum came before the district court on April 25, 2019, however, the matter was continued to May 30, 2019. According to the JPOIG's writ application, "[t]he court declined to consider the merits [of] the motion before it was filed by the JPOIG because there was pending a Petition for Declaratory Judgment in another division which raised relevant legal issues."
On April 30, 2019, the JPOIG filed a motion to transfer and consolidate Councilman Spears' declaratory judgment action pending in Division "A," with the lower numbered matter pending in Division "I," to "comply with Uniform Rules of District Court, Rule 9.4." The district court set the JPOIG's motion to transfer and consolidate for contradictory hearing on May 30, 2019, to be heard at the same time as the JPOIG's "Motion for Show Cause Hearing on Subpoena Ad Testificandum, La. R.S. 96:3313(A)(3)," which had previously been set for that date. Councilman Spears filed a response to the JPOIG's motion to transfer and consolidate stating that he had "no objections to, and will agree to the transfer of this matter, provided all rights are reserved to ensure that any consolidation for trial purposes does not prejudice [his] right to the exercise of all of the ordinary proceedings [sic] provisions applicable" to his petition for declaratory judgment.
On May 30, 2019, the JPOIG's show cause hearing on subpoena ad testificandum and for sanctions, and its motion to transfer and consolidate came for hearing. The trial court's minute entry reflects that JPOIG's motion to transfer and consolidate was granted and a judgment to that effect was signed in open court that day. The minute entry also reflects that the JPOIG's motion to show cause on subpoena ad testificandum and for sanctions was "not taken up." The minute entry for May 30, 2019 evidences that no other motions or matters were set for hearing on that date. Specifically, there is no indication in the court's minute entry (or otherwise in the record of the writ application) that Councilman Spears' declaratory judgment action—an ordinary proceeding which that day had been ordered to be transferred from Division "A" to Division "I"—was set for trial on the merits in Division "I" on May 30, 2019. Nonetheless, the trial court granted Councilman Spears' petition for declaratory judgment in open court and directed his counsel to prepare a judgment.
On June 21, 2019, the trial court issued a written judgment in accordance with its oral ruling stating, in pertinent part:
This matter came before the Court on the 30th day of May 2019, upon the rule of the Jefferson Parish Office of Inspector General's Subpoena ad Testificandum and for Sanctions, and Mark Spear's [sic] Petition for Declaratory Judgment. [Emphasis supplied.]
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After hearing the arguments of counsel, reviewing all memoranda, the pleadings and facts and considering the law and evidence:
IT IS ORDERED, ADJUDGED AND DECREED that the Petition for Declaratory Judgment filed by Councilman Mark Spears is GRANTED; and that the Jefferson Parish Office of Inspector General shall provide to Councilman Spears a fair description of the subject matter of the subpoena ad testificandum, and of any documents to be reviewed during his interview, so that he may assert any legislative privilege that may exist prior to being interviewed.
On the same day the judgment was signed, the JPOIG filed a request for written reasons and a notice of intent to seek supervisory writs of the trial court's June 21, 2019 judgment. Thereafter, the trial court issued written reasons for judgment on July 19, 2019 wherein the court reiterated that "Mark Spear's [sic] Petition for Declaratory Judgment" came before the court on May 30, 2019. By separate motion and order filed on July 19, 2019, the JPOIG, "in the alternative," timely filed a motion for appeal of the June 21, 2019 judgment.
The return date on the record to this Court has not yet been set. --------
Pretermitting the merits of Councilman Spears' petition for declaratory judgment—or whether the judgment granting his petition is a final, appealable judgment—we find that the trial court erred in considering the petition as there is no evidence in the record showing the matter had been set for trial on the merits. Our review of the limited record before us—which does not contain a transcript of the proceedings—indicates that the parties only had notice of the JPOIG's show cause hearing on subpoena ad testificandum and sanctions, and the JPOIG's motion to transfer and consolidate. There is nothing in the record showing that the declaratory judgment action was set for trial on May 30, 2019, or that the JPOIG was given notice, waived notice, or otherwise agreed, that the district court was going to consider the merits of Councilman Spears' declaratory judgment action on that date. This lack of adequate notice implicates a procedural due process concern. "[P]rocedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental." Roman v. LRADIF Claims Management, 11-393 (La. App. 5 Cir. 12/13/11), 81 So.3d 895, 899 citing Lassere v. State, Dept. for Health & Hospitals, 00-306 (La. App. 1 Cir. 3/28/01), 808 So.2d 513, 516. La. C.C.P. art. 1571(A)(1) provides, in pertinent part, that "[t]he district courts shall prescribe the procedure for assigning cases for trial which shall: (a) [r]equire adequate notice of trial to all parties." Thus, we find it was error for the trial court to render judgment on Councilman Spears' petition for declaratory judgment without affording the JPOIG notice that the merits of the petition would be under consideration summarily at the hearing on the JPOIG's rule to show cause on subpoena ad testificandum. Absent such notice, which amounts to a denial of the JPOIG's procedural due process right to be heard (Roman, 81 So.3d at 899), Councilman Spears' declaratory judgment action must be considered only after an evidentiary trial on the merits.
On the showing made, because of the inherent due process implications and our finding that Councilman Spears' petition for declaratory judgment was not properly or procedurally before the district court for consideration at the May 30, 2019 hearing, this Court finds that it has no alternative but to grant the JPOIG's writ application for the limited purpose of vacating the June 21, 2019 judgment and remanding the matter for a trial on the merits of the petition for declaratory judgment, to be held after requisite notice has been given, and in compliance with the provisions of the Louisiana Code of Civil Procedure governing ordinary proceedings as set forth in La. C.C.P. art. 1631, et seq.
Gretna, Louisiana, this 21st day of October, 2019.