Opinion
NUMBER 2017 CA 1335
03-14-2019
MARK WHEELER v. LOUISIANA PEACE OFFICER STANDARDS AND TRAINING COUNCIL
Remy Voisin Starns Ryan P. Reece Metairie, LA Attorneys for Appellant Defendant - Louisiana Peace Officers Standards and Training Council Pamela N. Breedlove Bossier City, LA Attorney for Appellee Plaintiff - Mark Wheeler
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 653874 Honorable Donald R. Johnson, Judge Remy Voisin Starns
Ryan P. Reece
Metairie, LA Attorneys for Appellant
Defendant - Louisiana Peace Officers
Standards and Training Council Pamela N. Breedlove
Bossier City, LA Attorney for Appellee
Plaintiff - Mark Wheeler BEFORE: GUIDRY, McCLENDON, WELCH, HOLDRIDGE, AND CHUTZ, JJ. WELCH, J.
The Council on Peace Officer Standards and Training ("POST Council") appeals a judgment of the district court that overruled its peremptory exception raising the objection of peremption, reversed the POST Council's decision to revoke Lieutenant Mark Wheeler's Peace Officer Standards and Training ("POST") certification, and reinstated Lt. Wheeler's POST certification. For the reasons that follow, we reverse that portion of the judgment of the district court overruling the objection of peremption, we vacate that portion of the judgment of the district court reversing the POST Council's decision and reinstating Lt. Wheeler's certification, and we dismiss Lt. Wheeler's petition to appeal the decision of the POST Council.
Although the plaintiff named the Louisiana Peace Officers Standards and Training Council as defendant herein, the proper designation is the Council on Peace Officer Standards and Training. See La. R.S. 40:2403.
BACKGROUND
The POST Council falls under the jurisdiction of the Louisiana Commission on Law Enforcement and Administration of Criminal Justice ("the Commission") within the office of the governor. La. R.S. 40:2403(A). The POST Council consists of the attorney general and eleven designated members of the Commission. La. R.S. 40:2403(B). In Louisiana, all full-time peace officers must complete a basic training course, as prescribed and certified by the POST Council. LAC 22:III.4703. In addition, all POST-certified peace officers must comply with the yearly in-service training and certification requirements set forth in LAC 22:III.4750.
However, we note that registration may be granted in lieu of certification to peace officers who were hired prior to January 1, 1986, did not attend POST certified basic training, and are currently performing duties of a peace officer. See LAC 22:III.4705.
Lt. Wheeler is employed by the Shreveport Police Department (SPD), and prior to the events leading up to these proceedings, was a POST-certified peace officer. On September 15, 2015, Lt. Wheeler went on sick leave because he was having surgery on his feet, and he returned to work at the SPD in March 2016. During the calendar year 2015, Lt. Wheeler failed to comply with the yearly in-service training and certification requirements set forth in LAC 22:III.4750. Therefore, on June 1, 2016, the Commission, through the POST programs manager, sent a letter to Lt. Wheeler by certified mail, return receipt requested, which stated that the POST Council had been notified of his failure to complete the in-service training and certification requirements for the calendar year 2015, and that due to this deficiency, his POST certification had been revoked effective May 12, 2016. The letter also stated that if Lt. Wheeler had any questions or desired to appeal the decision, he could contact POST at a telephone number provided therein.
On June 10, 2016, counsel for Lt. Wheeler sent a letter to the POST programs manger indicating that Lt. Wheeler desired to appeal the revocation of his POST certification on the basis that the revocation was improper because Lt. Wheeler fell within an exception to (and therefore, was not required to participate in) the yearly in-service training and certification requirements. In a July 8, 2016, e-mail, the POST law enforcement training manager acknowledged Lt. Wheeler's counsel's June 10, 2016 letter and stated that the "appeal letter of [June 10, 2016] fulfills a request to have the [POST] [C]ouncil consider its revocation decision regarding Lt. Wheeler at its next meeting." The e-mail from the POST law enforcement training manager also pointed out that "[a] peace officer whose certification has been revoked by the council may file an appeal under provisions of the Administrative Procedure Act under [La.] R.S. 49:964," citing LAC 22:III.4731.
On November 17, 2016, the POST Council, at an open meeting, considered Lt. Wheeler's request to reverse the revocation of his POST certification and to waive the training for 2015. After openly discussing the matter with Lt. Wheeler's counsel, the POST Council voted and the request was denied.
On December 20, 2016, thirty-three days after the POST Council's open meeting and vote, Lt. Wheeler commenced these proceedings in district court by filing a petition to appeal the POST Council's decision to revoke his POST certification. In response, the POST Council filed a peremptory exception raising the objection of peremption and a motion to dismiss on the basis that Lt. Wheeler's petition seeking judicial review of the POST Council's decision was not filed within the 30-day peremptive period provided in La. R.S. 49:964(B); therefore, his right to judicial review was extinguished by operation of law and should be dismissed.
We note that although the record reflects that a letter that purportedly accompanied Lt. Wheeler's petition for appeal was received by the clerk of court on December 19, 2016, the petition in this matter was stamped as filed by the clerk of court on December 20, 2016. Furthermore, the record before us fails to establish that this filing date is incorrect or otherwise that an error was made by the clerk of court with respect to the filing date. See La. C.C.P. art. 253. According to the statements made by counsel for Lt. Wheeler during oral argument in the proceedings below, the petition was not filed or processed until December 20, 2016 because the funds that were provided with the petition were insufficient to cover the cost required by the clerk of court. See La. R.S. 13:841, et seq.; La. Atty Gen. Op. Nos. 77-1574, 82-464, and 84-885; but cf. Jacobs v. Coca-Cola Bottling Co., 37, 775 (La. App. 2nd Cir. 10/20/03), 859 So.2d 250. However, the record before us fails to establish what the filing fees were for Lt. Wheeler's petition and whether the filing fees provided were indeed sufficient (or insufficient) and the law does not allow us to take judicial notice of the 19th Judicial District Court's filing fees. See La. C.E. art. 202.
After a hearing on the exception and a review of the administrative record, the district court rendered and signed a judgment on July 24, 2017, which overruled and/or denied the POST Council's objection of peremption/motion to dismiss; determined that Lt. Wheeler suffered a substantial loss due to the POST Council's revocation of his POST certification and that the POST Council's decision to revoke Lt. Wheeler's certification and its refusal to reinstate his certification were contrary to law and therefore reversed; and reinstated Lt. Wheeler's POST certification. From this judgment, the POST Council has appealed, challenging the district court's ruling as to the objection of peremption (i.e. the timeliness of Lt. Wheeler's appeal to the district court) and its determination that the POST Council's decision was contrary to law.
PEREMPTION
"Any peace officer whose certification has been denied or revoked by the [POST] [C]ouncil may file an appeal under the provisions of the Administrative Procedure Act provided in [La.] R.S. 49:964." La. R.S. 40:2405(J)(5); see also LAC 22:III.4731(E). Louisiana Revised Statutes 49:964(B) provides, in pertinent part, that "[p]roceedings for [judicial] review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after the transmittal of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon." With respect to a rehearing request, La. R.S. 49:959(A) provides, in pertinent part, that an agency "decision ... shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry" if "[t]he decision or order is clearly contrary to the law and evidence" or if "[t]here is good ground for further consideration of the issues...." "If an application for rehearing shall be timely filed, the period within which judicial review, under the applicable statute, must be sought, shall run from the final disposition of such application." La. R.S. 49:959(B).
The thirty-day time limitation to appeal an administrative agency's decision under La. R.S. 49:964 is peremptive. Labiche v. Louisiana Patients' Compensation Fund Oversight Bd., 96-1310 (La. App. 1st Cir. 5/9/97), 699 So.2d 408, 410, writ granted and reversed on other grounds, 97-2765 (La. 2/20/98), 706 So.2d 428. Thus, unless timely exercised, the right to appeal an administrative agency's decision is extinguished upon the expiration of the thirty day time period. See La. C.C. art. 3458.
In this case, the record establishes that the POST Council notified Lt. Wheeler, via certified mail, on June 1, 2016 of its decision that his POST certification was revoked effective May 12, 2016 due to his failure to comply with the yearly in-service training and certification requirements. Accordingly, Lt. Wheeler had either thirty days from June 1, 2016 (the date of the transmittal of the notice of the agency decision) to either appeal POST Council's decision to the district court in accordance with La. R.S. 49:964(B) or ten days from June 1, 2016 to request the agency to rehear, reopen, or reconsider its decision in accordance with La. R.S. 49:959(A). The record establishes that Lt. Wheeler, through his attorney sent a letter dated June 10, 2016 to the POST Council requesting an "appeal" of the POST Council's decision on the basis that it was contrary to the law, i.e. that the revocation was improper because Lt. Wheeler fell within an exception to the yearly in-service training and certification requirements, and that this June 10, 2016 letter was processed as a request for rehearing or reconsideration of the POST Council's decision to revoke Lt. Wheeler's POST certification. See La. R.S. 49:959(A). As Lt. Wheeler requested the rehearing or reconsideration of the agency decision in accordance with La. R.S. 49:959(A), any subsequent appeal to the district court under La. R.S. 49:964(B) had to be filed "within thirty days after the decision thereon."
As to Lt. Wheeler's request for rehearing or reconsideration of the POST Council's decision, the record herein demonstrates that POST Council considered its revocation of Lt. Wheeler's POST certification at an open POST Council meeting on November 17, 2016, and that the POST Council voted to deny his request. Therefore, Lt. Wheeler had thirty days from that date to file an appeal in the district court. See La. R.S. 49:964; McDonald v. Louisiana State Bd. of Private Investigator Examiners, 2003-0773 (La. App. 1st Cir. 2/23/04), 873 So.2d 674, 675-676. Notably, thirty days from November 17, 2016 was Saturday, December 17, 2016, which was a legal holiday; therefore, Lt. Wheeler had until Monday, December 19, 2016 to file his appeal. See La. C.C.P. art. 5059. However, Lt. Wheeler's petition to appeal was not filed in the district court until Tuesday, December 20, 2016. As such, his petition to appeal the final decision of the POST Council was untimely, his right to appeal was extinguished, and therefore, the petition for appeal should have been dismissed. Accordingly, we reverse the judgment of the district court insofar as it overruled and denied the POST Council's peremptory exception raising the objection of peremption and motion to dismiss, and we render judgment dismissing Lt. Wheeler's petition to appeal the decision of the POST Council with regard to the revocation of Lt. Wheeler's POST certification.
In McDonald, 873 So.2d at 675-676, this Court stated:
According to the clear language of the statutory provision quoted above, an appeal from an administrative decision, following a request for a rehearing, must be made within thirty days following the decision on the rehearing. The language in this clause does not specify, as it does in the previous clause relating to appeal from the final decision, that the thirty-day appeal period begins upon the mailing of notice of the agency's decision. Therefore, keeping in mind the rules of interpretation as outlined above, the statutory provision clearly contemplates that unlike appeals from the final decision when no rehearing is requested, the period for bringing an appeal following a request for rehearing commences with the rendition of the decision on the rehearing, not upon the mailing of notice of the decision, or upon receipt of notice ..."
Furthermore, since Lt. Wheeler's right to appeal the decision of the POST Council was extinguished by his failure to timely exercise his right to appeal the decision, the district court lacked the authority to either reverse the POST Council's decision or to reinstate Lt. Wheeler's POST certification. Therefore, we vacate that portion of the judgment of the district court reversing the POST Council's decision and reinstating Lt. Wheeler's certification.
CONCLUSION
For all of the above and foregoing reasons, that portion of the judgment of the district court overruling and denying the POST Council's objection of peremption and motion to dismiss is reversed and judgment is rendered dismissing Lt. Wheeler's petition to appeal the decision of the POST Council, and that portion of the judgment of the district court reversing the POST Council's decision and reinstating Lt. Wheeler's certification is vacated. All costs of this appeal are assessed to the plaintiff, Lieutenant Mark Wheeler.
REVERSED IN PART; VACATED IN PART; RENDERED. GUIDRY, J., dissents and assigns reasons. GUIDRY, J., dissenting.
I disagree with the determination that Wheeler's petition for judicial review was untimely filed. As the majority opinion correctly observes, the deadline for Wheeler to file his application for judicial review was December 19, 2016. It is undisputed that his petition was received by the clerk for the Nineteenth Judicial District Court (19th JDC) on December 19, 2016; however, the petition was not filed by the clerk until December 20, 2016, due to a deficiency in the sum remitted by Wheeler to file the petition.
While the fact that Wheeler submitted payment in the amount of $470.00 with his petition for judicial review is undisputed, citing La. C.C.P. art. 202 and observing that we cannot take judicial notice of the 19th JDC's filing fees, the majority chooses not to follow Jacobs v. Coca Cola Bottling Company, 37,775, p. 7 (La. App. 2d Cir. 10/20/03), 859 So. 2d 250, 254, writ denied, 03-3183 (La. 2/6/04), 865 So. 2d 725, because "the record before us fails to establish what the filing fees were for Lt. Wheeler's petition and whether the filing fees provided were indeed sufficient (or insufficient)."
Louisiana Revised Statutes 13:842(A) provides, in pertinent part, that "[t]he clerks of the district courts shall demand and receive from the plaintiff or plaintiffs in each ordinary suit ... not less than twenty dollars or such other amount as may be fixed by law for advanced costs, to be disbursed to the clerk's salary fund or to others as their fees accrue." Hence, any costs assessed by the 19th JDC must be provided for by positive law, which as applicable to the 19th JDC, would include the following statutes: La. R.S. 13:10.3(C) and (E) (for funding of the Judges' Supplemental Compensation Fund); La. R.S. 13:754(F)(1)(for funding the maintenance of a statewide portal for secure remote access by internet users to certain records maintained by the clerk); La. R.S. 13:841(A)(listing the fees that can be charged for various acts, including filing a document); La. R.S. 13:841.1 (fee to defray supreme court reporting system expense); La. R.S. 13:991 (for funding the Judicial Expense Fund for the 19th JDC); and La. R.S. 13:992.1(B)(2)(b)(for the 19th JDC Judicial Building Fund); and La. R.S. 13:1000 (funding for legal assistance programs).
Although we are unable to calculate the exact amount that the 19th JDC could charge as advance costs based on these statutes (as some of the statutes allow the clerk to charge a discretionary amount within certain parameters), from the record before us, we are able to calculate the exact amount of the advance fees that are attributable to the filing of the petition in this case, which would be $98.00. And while this court is not bound to follow a decision of the Second Circuit, I agree with the reasoning of that court and would follow the decision as it comports with the rights to judicial review and access to courts afforded citizens by our state constitution. See La. Const. art. 1, §§19 and 22. Hence, as the $470.00 remitted by Wheeler was more than sufficient to cover the costs specifically related to filing the petition with the attached exhibit in this case, I believe the trial court's decision to accept Wheeler's petition as timely filed and to consider the same was eminently correct.
See La. R.S. 13:841(A)(1) & (2). Wheeler submitted a nine-page petition for judicial review with an attached exhibit consisting of twenty pages to be filed.
Additionally, I further believe that the trial court did not err in annulling the POST Council's decision to revoke Wheeler's POST certification, albeit for possibly different reasons than those relied on by the trial court. In reviewing the record and the applicable law, it is evident that at the time the POST Council revoked Wheeler's POST certification, there was no authority provided in LAC 22:III.4731, nor in any other regulation or statute, that allowed the Council to revoke a peace officer's POST certification for noncompliance with training. At the time the POST Council revoked Wheeler's certification, Section 4731 provided:
Louisiana Revise Statutes 40:2405(J) now statutorily provides that a peace officer's POST certification can be revoked for a variety of reasons, including for failure to complete additional training as required and prescribed by the POST Council. This provision was enacted by 2017 La. Acts, No. 271, §1 and was not effective until June 16, 2017.
A. All law enforcement agencies and correctional agencies and institutions within the State of Louisiana shall immediately report the conviction of any POST certified full-time, reserve, or part-time peace officer to the council.As Section 4731 only provided for revocation due to criminal prosecutions at the time of Wheeler's revocation, such was clearly inapplicable to Wheeler. Thus, because there was no regulatory or statutory authority that allowed the Council to revoke Wheeler's certification for non-compliance with the yearly in-service training requirement at the time the POST Council revoked Wheeler's certification, I believe the Council's were contrary to the law and thus properly overturned. See Delahoussaye v. Board of Supervisors of Community and Technical Colleges, 04-0515, p. 5 (La. App. 1st Cir. 3/24/05), 906 So. 2d 646, 649 and Varner v. Day, 00-2104, p. 5 (La. App. 1st Cir. 12/28/01), 806 So. 2d 121, 125.
B. Any offense which results in the individual peace officer's restriction of his/her constitutional right to bear arms shall be grounds for immediate revocation. The revocation of any certification is effective immediately when the council receives a certified copy of a court's judgment and issues notice to the peace officer. Notice of the revocation shall be sent via certified US mail to the peace officer and the officer's employing agency.
C. All criminal convictions involving a peace officer shall be directed to the council's attention for potential revocation hearings. The council shall review each criminal conviction and conduct hearings on each reported conviction.
D. Any hearings conducted by the council shall be conducted according to guidelines established by the council.
E. Any peace officer whose certification has been revoked by the council may file an appeal under the provisions of the Administrative Procedure Act under R.S. 49:964.
See La. Register, Vol. 25:665 (April 1999), as amended by La. Register, Vol. 34:1927 (September 2008).
In June 2018, two years after the Council had revoked Wheeler's POST certification, Section 4731 was amended to expressly provide that the certification of any qualified peace officer "shall be revoked if the officer...failed to complete additional training as required/prescribed by the [C]ouncil." See LAC 22:III.4731(C)(3).
In its brief, the POST Council asserts that because Wheeler did not raise this argument below, Rule 1-3 of the Uniform Rules of the Louisiana Courts of Appeal bars this court from considering the fact that Section 4731 did not provide the failure to timely complete in-service training as a ground for revocation in 2016. However, Rule 1-3 states that an appellate court "will review only those issues which were submitted to the trial court and which are contained in specification or assignments of error, unless the interest of justice clearly requires otherwise." (Emphasis added.) Furthermore, La. C.C.P. art. 2164 gives an appellate court authority to "render any judgment which is just, legal, and proper upon the record on appeal."
Thus, considering that Wheeler consistently challenged the Council's actions as being contrary to law, and further considering the fact that both parties briefed this particular argument on appeal, consideration of this argument is clearly proper. See Thompson v. WinnDixie Montgomery, Inc., 150477, p. 12 (La. 10/14/15), 181 So. 3d 656, 665; Merrill v. Greyhound Lines, Inc., 102827, pp. 23 (La.4/29/11), 60 So.3d 600, 602.
Hence, I would affirm the judgment of the trial court, and for these reasons, I respectfully dissent.