Opinion
NO. 2017-CA-1051
10-03-2018
STATE of Louisiana, THROUGH ORLEANS PARISH CRIMINAL DISTRICT COURT, Clerk of Court, Arthur Morrell v. CITY OF NEW ORLEANS, THROUGH the CITY COUNCIL
Madro Bandaries, MADRO BANDARIES, P.L.C., 938 Lafayette Street, Suite 204, Post Office Box 56458, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT Daniel T. Smith, ASSISTANT CITY ATTORNEY, Cherrell S. Taplin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, City Hall - Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
Madro Bandaries, MADRO BANDARIES, P.L.C., 938 Lafayette Street, Suite 204, Post Office Box 56458, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT
Daniel T. Smith, ASSISTANT CITY ATTORNEY, Cherrell S. Taplin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, City Hall - Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
Judge Tiffany G. Chase
Arthur Morrell, in his official capacity as Clerk of Orleans Parish Criminal District Court (hereinafter "the Clerk"), seeks review of the trial court's October 30, 2017 judgment denying his petition for writ of mandamus. After consideration of the record before this Court, and the applicable law, we convert the Clerk's appeal to a writ; grant the writ; deny relief and affirm the judgment of the trial court.
Facts and Procedural History
The issues regarding funding for the Clerk's office have been before this Court on numerous occasions. However, we will keep our recitation of the facts and procedural history pertinent to the current matter before us.
State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu , 2012-1756 (La.App. 4 Cir. 10/23/13), 126 So.3d 762 ; State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu , 2014-0421 (La.App. 4 Cir. 10/1/14), 151 So.3d 714 ; State ex rel. Orleans Parish Criminal District Court v. City of New Orleans ex rel. Landrieu , 2015-1089 (La.App. 4 Cir. 3/16/16), 192 So.3d 127 writ denied , 2016-0704 (La. 6/3/16), 192 So.3d 752 ); and State through Morrell v. City of New Orleans through Landrieu , 2017-0110 (La.App. 4 Cir. 12/21/17), 234 So.3d 1071 ) writ denied , 2018-0116 (La. 3/9/18), 237 So.3d 1192.
On September 15, 2017, the Clerk filed a petition for writ of mandamus against the City of New Orleans (hereinafter "the City"), directing the City to provide adequate funding for the Clerk's office. The Clerk argued the City violated La. R.S. 13:1381.7 by refusing to fund all 90.5 deputy clerk positions thus improperly reducing the Clerk's budget for 2017 after the funds were appropriated. He further maintained that mandamus was the proper procedural vehicle because the City's statutory obligation to fund the Clerk's office is ministerial in nature.
The City filed exceptions of "no cause of action" and "no right of action/subject matter jurisdiction." The City maintained that it funded the Clerk's office with the full amount appropriated. The trial court heard the matter on October 30, 2017, overruled the City's exceptions and denied the Clerk's writ of mandamus. The trial court reasoned that the Clerk's budget had not been reduced and the annual appropriation has remained $3.726 million since 2012. Thus, the trial court found the City did not violate La. R.S. 13:1381.7. The Clerk filed a motion for appeal which was signed by the trial court.
Appellate Jurisdiction
An appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter, even when the issue is not raised by litigants. See Urquhart v. Spencer , 2015-1354, p. 3 (La.App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Moon v. City of New Orleans , 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). A final, appealable judgment must contain the proper decretal language. The judgment must name the party against whom and the party in favor of whom the ruling is ordered, as well as the relief denied or granted. Id. (quoting Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , 2014-0506, p. 3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910 ).
The October 30, 2017 judgment does not dismiss the petition rather it, provides that the petition for writ of mandamus is denied. The judgment fails to specify the relief granted and, therefore, is not a final appealable judgment. However, this Court may exercise its supervisory jurisdiction and convert the appeal to an application for supervisory review when the appeal is filed within the thirty-day period allowed for an application for supervisory writ. Mid City Holdings, L.L.C. , 2014-0506, p. 4, 151 So.3d at 911. The motion for appeal in this case was filed within the thirty-day period. As such, we exercise our discretion and convert the Clerk's appeal to an application for supervisory writ. Id.
Discussion
The central issue presented to this Court is whether mandamus is the appropriate procedural vehicle to determine whether the City adequately funded the Clerk's office. Mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel an action that is clearly provided by law. A writ of mandamus may be directed to public officers in order to compel the performance of a ministerial duty. La. C.C.P. art. 3863. "A ‘ministerial duty’ is one ‘in which no element of discretion is left to the public officer....’ " Jazz Casino Co., L.L.C. v. Bridges , 2016-1663, p. 5 (La. 5/3/17), 223 So.3d 488, 492 (quoting Hoag v. State , 2004-0857, p. 7 (La. 12/1/04), 889 So.2d 1019, 1024 ). The Louisiana Supreme Court has succinctly "defined a ministerial duty as a ‘simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.’ " Aberta, Inc. v. Atkins , 2012-0061, p. 3 (La. 5/25/12), 89 So.3d 1161, 1163 (quoting Hoag , 2004-0857, p. 7, 889 So.2d at 1024 ). If any element of discretion is vested to the public officer, mandamus is not proper. Id. Thus, we must determine whether the City failed to perform a ministerial duty required by law. In Clerk I , we concluded that the City could not reduce the Clerk's budget without legislative approval and remanded the case to the trial court for consideration in light of the newly enacted legislation. State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu , 2012-1756, pp. 9-10 (La. App 4 Cir. 10/23/13), 126 So.3d 762, 768.
This Court reviews a trial court's denial of a writ of mandamus under an abuse of discretion standard. Constr. Diva, L.L.C. v. New Orleans Aviation Bd. , 2016-0566, p. 13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037, writ denied , 2017-0083 (La. 2/24/17), 216 So.3d 59.
Whether the City reduced the Clerk's budget is not the issue before us today. The City appropriated $3.726 million for the Clerk's 2017 budget and fully paid this amount. The amount appropriated to the Clerk's office has remained the same since 2012. The trial court was correct in its assertion that since the 2017 budgetary appropriation was not reduced, the City did not violate La. R.S. 13:1381.7. Whether $3.726 million is sufficient to pay 90.5 employees is a factual question which is not properly resolved in a mandamus proceeding. It appears such inquiry would be more properly sought by means of a declaratory judgment action or other ordinary proceedings. Therefore, we find that mandamus is not the proper procedural vehicle to determine whether the City adequately funded the Clerk's office.
Conclusion
A ministerial duty is one in which no discretion is vested to the public officer. The amount of money needed to fund the Clerk's office is a factual determination and not a ministerial duty. As such, mandamus is not the proper procedural vehicle to determine whether the City adequately funded the Clerk's office. For the foregoing reasons, the appeal is converted to a writ; the writ is granted; relief is denied and the judgment of the trial court is affirmed.
APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED; JUDGMENT AFFIRMED
LOVE, J., CONCURS IN PART; DISSENTS IN PART AND ASSIGNS REASONS
LOVE, J., CONCURS IN PART; DISSENTS IN PART AND ASSIGNS REASONS
I respectfully concur in part and dissent in part. I agree with the majority's decision to convert the appeal to an application for supervisory review. However, unlike the majority, I find mandamus may be issued in this case and would remand the matter for an evidentiary hearing. I write separately to address my appreciation of the relevant facts giving rise to the matter before us.
The history surrounding this litigation is summarized by this Court in State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu , 12-1756 (La. App. 4 Cir. 10/23/13), 126 So.3d 762 ("Clerk I "); State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu , 14-0421 (La. App. 4 Cir. 10/01/14), 151 So.3d 714 ("Clerk II "); State ex rel. Orleans Parish Criminal District Court v. City of New Orleans ex rel. Landrieu , 15-1089 (La. App. 4 Cir. 3/16/16), 192 So.3d 127 ("Clerk III "); and State through Morrell v. City of New Orleans through Landrieu , 17-0110 (La. App. 4 Cir. 12/21/17), 234 So.3d 1071 ("Clerk IV ").
The Clerk alleged in his petition that pursuant to La. R.S. 13:1371.2, he has a substantive right, with the approval of the judges of Criminal District Court, to appoint deputy clerks "as are necessary to properly conduct business" of the Clerk's Office. He maintains that since at least 2005, 90.5 full time deputy clerks are necessary for the Clerk's Office to properly operate. The Clerk avers that he originally submitted a 2017 budget for 90.5 deputy clerk positions; however, the City approved and adopted a budget for the Clerk's Office which only covered 75 full time positions. The Clerk asserts in his petition that the City has failed to meet its statutory obligation of paying the salaries of 90.5 necessary deputy clerk positions pursuant to La. R.S. 13:1381.7. He further claims that the failure to put the necessary replacement employees on the payroll is a reduction of the Clerk's Office's funding. Moreover, without adequate funding to account for 90.5 full time employees, the Clerk is prevented from filling the vacancies and from properly operating his office.
Pursuant to La. R.S. 13:1371.2(B) "[t]he clerk of the Criminal District Court for the parish of Orleans shall appoint, with the approval of the judges of the court, such deputy clerks as are necessary to properly conduct the business of his office and of the court." The salaries of the Clerk's Office employees "shall be paid by the city of New Orleans." La. R.S. 13:1372. Additionally, La. R.S. 13:1381.7(A) states that adequate funding of the Clerk's Office "is necessary for the efficient performance of the powers and duties required of a judicial officer of the state." "To foster the efficient performance of the powers and duties of the Clerk of Court and his Office, the Louisiana legislature mandates that the City pay "all expenses, including salaries and maintenance of constitutional officers, their deputies, subordinates, and employees" and "shall not be reduced by the City of New Orleans without the consent of the legislature." La. R.S. 13:1381.7(A).
The Clerk asserts that 90.5 full time employees are necessary to properly conduct business, and the City has failed in its statutory duty to adequately fund the Clerk's Office for the mandated 90.5 employees for the 2017 fiscal year. The Clerk submitted a budget of $5,203,697.00 for 2017; however, the City approved and adopted a budget for the Clerk's Office for $3,726,330.00. The Clerk alleges that the City-approved budget of $3.726 million only covered 75 full time positions and not the 90.5 positions that the Clerk maintains are "necessary to properly conduct business" of his office. The Clerk avers that by failing to account for the replacement of the fifteen vacant positions on the payroll, the City has reduced the funding required to properly operate the Clerk's Office, in violation of La. R.S. 13:1381.7.
The City counters that it has fully funded the Clerk's Office. It alleges that the trial court correctly found that it was undisputed that the City has not reduced the Clerk's funding since it withheld 3.8% in 2012 from the Clerk's Office budget of $3.726 million and that the annual appropriation of $3.726 million to the Clerk has held steady since that time. The City contends that because it did not reduce the Clerk's appropriation for 2017 below the amount provided in 2012, the trial court correctly held that the Clerk failed to show that there was a reduction in the budget and as a result that the City violated a ministerial duty.
The City also points out that this Court, in Clerk III , recognized the trial court's finding that the adopted budget for 2012 would have supported salaries for the 90.5 employees/deputy clerks. However, the Clerk states that the City is mistaken in its assertion. He has continually maintained that since 2012 vacancies in necessary positions have left the Clerk's Office understaffed. Thus, the Clerk argues that $3.726 million was never enough to fund the salaries of 90.5 employees because since 2012 the Clerk's Office has never had the 90.5 employees required to properly operate. Without funding to account for 90.5 employees, the Clerk asserts that he is barred from exercising his authority under La. R.S. 13:1371.2(B) to fill vacancies in his support staff.
Clerk III , 15-1089, p. 7, 192 So. 3d at 132.
I am also careful to note that those findings relative to the City's funding of the Clerk's Office that the City relies on were exclusive to the year 2012 alone. Even still, since that time, the Clerk avers his office has experienced staff turnover as a result of employee termination, resignation, and retirement. Consequently, positions within the Clerk's Office went vacant and remain unfilled. The Clerk asserts that there were 15 positions that remained vacant in 2017. Therefore, I disagree with the City's argument that the Clerk attempts to re-litigate the factual findings made with respect to the 2012 budget.
The assumption is that in order for a reduction in funding to occur in this case there must be a withholding of an approved budget, as in 2012. The City's argument of the same, as adopted by the trial court and the majority, oversimplifies the issue. The Clerk's operating budget is susceptible to a myriad of factors including but not limited to staff turnover, economic influences, and legislative changes. To compare the factual circumstances of the 2012 litigation to the present action draws a false conclusion that as long as the amount appropriated remains constant (in this case $3.726 million) there can be no reduction in the Clerk's Office funding.
The history of this litigation demonstrates that underlying factual issues remain. At the heart of the parties' dispute is the amount required to fully fund 90.5 employees and whether the $3.726 million the City has funded is sufficient to satisfy its ministerial duty to fund the Clerk's Office. In this way, the City is correct in its assertion in brief that "[i]t is neither fair nor efficient for a party to be forced to continually reestablish the same facts over multiple bouts of litigation." It is evident that if the underlying factual issues remain unresolved, so is a resolution for the parties involved.
This Court addressed this concern in Clerk IV , finding for the years 2013 through 2016 "[a] factual dispute exists as to the amount required to fund 90.5 employees and whether the $3.726 million dollars the City funded the Clerk is sufficient to meet its statutory obligation to fund the Clerk's Office." Clerk IV , 17-0110, p. 13, 234 So.3d at 1080. This Court found mandamus inappropriate because the petition for writ of mandamus, which sought redress for four years-worth of alleged underfunding was, as the City describes, "sweeping in scope." The evaluation of evidence and weighing the credibility of witnesses, in that respect, was inappropriate for entitlement of mandamus relief. I find the present matter distinguishable as it is limited to the 2017 fiscal year.
The appropriateness of filing a petition for writ of mandamus as compared to seeking declaratory judgment or relief through an ordinary proceeding was never addressed by this Court until Clerk IV .
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The question becomes whether mandamus is permitted in this action. Courts have consistently held that mandamus is permitted even where other means of relief exist if the slowness of an ordinary proceeding would likely cause such a delay as to hamper the administration of justice. La. C.C.P. art. 3862. The Clerk testified, during the pendency of this litigation and as a result of his inability to fill the vacancies in his office, functions of his office had to be reduced. Likewise, the underlying factual dispute between the parties has been ongoing since 2012. The history of this litigation and my finding that underlying factual issues remain, which are essential to the ultimate determination of whether the City has met its ministerial duty under existing state laws, proves that while relief may be sought through the use of an ordinary proceeding, the delay of the process would hamper the administration of justice.
La. R.S. 13:1381.7(A) was enacted to clarify "the necessity for the City to provide adequate funding to the Clerk's Office." Clerk I , 12-1756, p. 8, 126 So.3d at 767. "Adequate funding plays an important role in the ‘efficient performance of the powers and duties of a judicial officer of the state’ in addition to the ‘judicial efficiency’ and the protection and promotion of the ‘lives, health, morals, comfort, and general welfare of people as a whole.’ " Id. (citing La. R.S. 13:1381.7(A) ). Therefore, because the delays involved in obtaining ordinary relief will cause injustice, I find mandamus may be issued in this case. La. C.C.P. art. 3862. However, because underlying factual issues must be resolved in order to determine whether the City has satisfied its ministerial duty to adequately fund the Clerk's Office and therefore whether mandamus is warranted, I find remand necessary. See Marshall v. West Baton Rouge Parish Fire Protection Dist. Number 1 , 08-1576 (La. 1/9/09), 998 So.2d 85 (vacating and setting aside trial court's judgment granting writ of mandamus and remanding for evidentiary hearing to determine underlying factual issues).
The ultimate issue to be decided is whether the City has met its ministerial duty under existing state laws to provide adequate funding to the Clerk's Office. Essential to this finding is a determination of what amount is required to fund 90.5 employees and whether the amount the City funded is sufficient to meet its statutory obligation to fund the Clerk's Office. In that the trial court made no determinations regarding these factual issues, in line with Marshall , I would vacate and set aside the trial court's denial of the Clerk's writ of mandamus and remand for further proceedings. On remand, I would order the trial court to take evidence, hear testimony, and make factual findings regarding what amount is required to adequately fund 90.5 employees and whether the City has satisfied its ministerial duty to fund the Clerk's Office.