Opinion
2013 CA 0018
2013-09-13
JAUVÉ COLLINS v. DOUG WELBORN, EAST BATON ROUGE PARISH CLERK OF COURT, CRIMINAL RECORDS
Jauvé Collins Louisiana State Penitentiary Angola, Louisiana In Proper Person/Appellant Jewel E. Welch, III Zachary, Louisiana Attorney for Defendant/Appellee, Honorable Douglas J. Welborn, in his capacity as the Clerk of Court and Recorder, in and for the Parish of East Baton Rouge
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 602,889
The Honorable Timothy Kelley, Judge Presiding
Jauvé Collins
Louisiana State Penitentiary
Angola, Louisiana
In Proper Person/Appellant Jewel E. Welch, III
Zachary, Louisiana
Attorney for Defendant/Appellee,
Honorable Douglas J. Welborn, in his
capacity as the Clerk of Court and
Recorder, in and for the Parish of East
Baton Rouge
BEFORE PARRO GUIDRY AND DRAKE JJ.
DRAKE, J.
This is an appeal by petitioner, Jauvé Collins, following the finding that his request for mandamus was moot and awarding civil penalties against defendant, Douglas J. Welborn, East Baton Rouge Parish Clerk of Court (Clerk), in the amount of $500. Mr. Collins appeals the judgment and seeks damages, as well as an increase in civil penalties. We affirm.
FACTS
Mr. Collins was convicted of second degree murder in violation of La. R.S. 14:30.1. He appealed his conviction and sentence, and both were affirmed. State v. Collins, 2009-1617 (La. App. 1 Cir. 2/12/10), 35 So. 3d 1103, 1109, writ denied, 2010-0606 (La. 10/8/10), 46 So. 3d 1265. On May 4, 2011, Mr. Collins sent a written request by certified mail to the Clerk, seeking to obtain the costs for various portions of his trial transcript pertaining to his second degree murder trial, specifically, (1) voir dire; (2) jury instructions; (3) opening arguments by both parties; (4) testimony of Patrick Lane; and 5) testimony of Dr. Gilbert Corrigan. The Clerk received the request on May 9, 2011, which was evidenced by a signed certified mail receipt. Mr. Collins received no response to his request and filed a Petition for Writ of Mandamus and Civil Penalties against the Clerk on June 24, 2011.
The Clerk answered Mr. Collins's petition timely, and a hearing was set before the Commissioner, Section A, 19th Judicial District Court (Commissioner), on February 28, 2012. At the hearing, the Clerk admitted being aware of Mr. Collins's May 2011 written request for documents in his criminal case No. 03-07- 231. The Clerk also admitted that it did not send a response to Mr. Collins prior to his filing the Writ of Mandamus. Counsel for the Clerk argued that in September 2011, he mailed the cost for obtaining all of the requested documents other than voir dire, which had not been transcribed, to Mr. Collins. Mr. Collins denied ever receiving the cost estimate referred to by the Clerk. However, at the hearing, counsel for the Clerk informed Mr. Collins of all the cost estimates other than voir dire. The Commissioner informed Mr. Collins how to obtain the voir dire transcript. Therefore, the Commissioner found the subject of Mr. Collins's Writ of Mandamus to be moot.
The office of commissioner of the 19th Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5); see Martinez v. Tanner, 2011-0692 (La. App. 1 Cir. 11/9/11), 79 So. 3d 1082, 1084 n.3, writ denied, 11-2732 (La. 7/27/12), 93 So. 3d 597.
The Commissioner then found that Mr. Collins did not prove any "actual" damages, but recommended Mr. Collins be awarded $500 in civil penalties due to the unreasonable and arbitrary delay in the Clerk's failing to respond to Mr. Collins's request. The trial court signed a judgment in accordance with the recommendation of the Commissioner. It is from this judgment that Mr. Collins appeals.
ASSIGNMENT OF ERROR
Mr. Collins assigns only one error that the trial court erred in adopting the Commissioner's recommendations, which found that he did not prove actual damages and did not recommend an award of a $ 100 per day in civil penalties for the Clerk's delay.
LAW AND ANALYSIS
The Louisiana Constitution guarantees the right to access public records. Louisiana Constitution Article XII, Section 3 states, "No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." The Louisiana Supreme Court has stated:
The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. The provision of the constitution must be construed liberally in favor of
free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to see. To allow otherwise would be an improper and arbitrary restriction on the public's constitutional rights.Title Research Corp. v. Rausch, 450 So. 2d 933, 936 (La. 1984) (citation omitted).
Louisiana Revised Statutes 44:1 et seq. sets forth the relevant law on public records requests, and it expresses an expansive attitude toward a citizen's right to view and copy public records. The custodian of any public record is required to provide the requested records to anyone over the age of majority who requests them, but may charge a reasonable fee for doing so, and although the custodian may, in his discretion, provide the records free of charge or at a reduced rate, the custodian is not required to do so. See La. R.S. 44:32(A) and (C)(2).
The trial court found that Mr. Collins's Writ of Mandamus was moot, since all the costs for the public records he requested were given to him at the hearing before the Commissioner. Mr. Collins does not appeal this ruling. Therefore, the only issues are whether Mr. Collins is entitled to either damages or civil penalties, or both.
Louisiana Revised Statutes 44:35 provides that if the public records request is denied or not responded to within five days, the person seeking the records may be awarded court costs and damages, as well as civil penalties up to $100 per day. Damages are limited to "actual" damages only.
Louisiana Revised Statutes 44:35 provides, in pertinent part, as follows:
A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney's fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
* * *
D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney's fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney's fees or an appropriate portion thereof.
E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification. (Emphasis added).
The above statute gives the trial court discretion to award either actual damages proven or civil penalties. The trial court's determination of the amount of an award of damages is a finding of fact. Ryan v. Zurich American Ins. Co., 2007-2312 (La. 7/1/08), 988 So. 2d 214, 219. Much discretion is left with the trier of fact with regard to damages. See La. C.C. art. 2324.1. The initial inquiry must always be directed at whether the trial court's award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact's great discretion. Rando v. A nco Insulations, Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065, 1094. It is only after an articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive or insufficient. Id.
An appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through Dep't of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993). Thus, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id. at 883. Damages
Mr. Collins asserts that the trial court incorrectly denied him damages for the Clerk's delay in providing him with the cost estimate to obtain certain transcripts of his criminal trial. An appellate court should rarely disturb an award of damages since great discretion is vested in the trial court. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is well-settled that a judge or jury is given great discretion in its assessment of quantum, of both general and special damages. Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So. 3d 1104, 1116-17. Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact that is entitled to great deference on review. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So. 2d 70, 74.
The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright, 774 So. 2d at 74; Youn, 623 So. 2d at 1261. The initial inquiry by the appellate court is whether the award is a clear abuse of that "much discretion" of the trier of fact. Youn, 623 So. 2d at 1260. Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So. 2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So. 2d 332, 335 (La. 1976).
Mr. Collins claims that the trial court abused its discretion in not awarding him any actual damages. He asserts that pursuant to 28 U.S.C. § 2254, he is entitled to damages, because he has only one year to bring a habeas corpus petition in federal court, and the Clerk's delay in timely providing him the cost of his trial transcript caused some of that year to pass. The limitation period runs from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari, with the United States Supreme Court. See Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
Mr. Collins argued at the hearing that the Clerk's failure to timely provide him with a cost estimate caused him injury, since the federal time to file a habeas corpus petition began when the Louisiana Supreme Court denied his writ application on October 8, 2010, regarding his conviction and sentence. See Collins, 46 So. 3d 1265. However, 28 U.S.C. § 2244(d)(2) specifically states that "[t]he time during which a properly filed application for State post-conviction ... review ... is pending shall not be counted toward any period of limitation." At the hearing, it was determined that Mr. Collins had filed an application for post-conviction relief that is still pending before the Commissioner. Mr. Collins also complained that he had to file his post-conviction relief application with an incomplete record, since he was still missing the requested trial transcripts. The Commissioner assured Mr. Collins that his application would not be adjudicated until he had obtained the documents he needed for the record.
Mr. Collins argues that his federal time to file a habeas corpus petition has been running while he has attempted to obtain the trial transcripts. However, Mr. Collins is mistaken. As the Commissioner noted at the hearing, the one-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment is tolled while an application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002). Since Mr. Collins has an application for post-conviction relief pending, his time has not yet begun to toll for the federal one-year statute of limitations. Additionally, Mr. Collins did not offer any evidence that he was denied federal relief or that any damages resulted from that denial. Therefore, as the trial court found, Mr. Collins has not produced any evidence that he has been damaged as a result of the Clerk's delay in providing him the cost estimate to obtain his trial transcript. Civil Penalties
Mr. Collins also argues that he is entitled to an increase of civil penalties. The trial court awarded Mr. Collins $500 in civil penalties due to the Clerk's delay in providing the cost estimate to Mr. Collins. The statute permitting civil penalties, La. R.S. 44:35(E)(1), does not mandate penalties, but gives a trial court the discretion to do so, as it states "it may award the requester civil penalties." (Emphasis added). Therefore, the trial court had discretion whether to award civil penalties. Mr. Collins is requesting this court to increase the amount of civil penalties to the maximum amount allowed, "not to exceed one hundred dollars per day." La. R.S. 44:35(E)(1). The trial court had discretion to award the amount of civil penalties it felt necessary after viewing all the evidence and hearing all the testimony. Because the civil penalty award is not mandatory, as evidenced by the use of "may" in the statute, the issue is whether the trial court abused its discretion in its award of a civil penalty. City of Pineville v. Aymond, 2008-0040 (La. App. 3 Cir. 4/30/08), 982 So. 2d 292, 295.
The courts have recognized that, with regard to the attorney's fees permitted by La. R.S. 44:35, the amount to be awarded is discretionary with the trial court. Dwyer v Early, 2002-1545 (La. App. 4 Cir. 3/12/03), 842 So. 2d 1124, 1126, writ denied, 2003-1013 (La. 5/30/03), 845 So. 2d 1053. The civil penalties allowed by statute are also discretionary after the trial court finds that the custodian acted arbitrarily, capriciously, or unreasonably. Hunter v. Pennington, 98-1821 (La. App. 4 Cir. 1/20/99), 726 So. 2d 1082, 1084.
The trial court in the present case found that the Clerk did not respond to Mr. Collins in a timely manner and did not inform him it was having trouble locating the record of his trial. Furthermore, the trial court noted that the Clerk did not ever respond in writing to Mr. Collins regarding his request for a cost estimate and gave no excuse or explanation for its failure to do so. Therefore, the trial court found the Clerk to be unreasonable and capricious and awarded penalties in the amount of $500. Mr. Collins is not entitled to "$100 per day" for the Clerk's failure to produce the cost estimate. Since the trial court has discretion whether to award civil penalties, we cannot say that the amount the trial court awarded is an abuse of discretion.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to appellant, Jauve Collins.
AFFIRMED.