Warren Montgomery, in His Official Capacity as District Attorney for St. Tammany Parish v. St. Tammany Parish Government, by and Through the St. Tammany Parish Council And Patricia "Pat" Brister, in Her Official Capacity as Parish President ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #030
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of June, 2018, are as follows:
BY CLARK, J.:
2017-C-1811 WARREN MONTGOMERY, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY
FOR ST. TAMMANY PARISH v. ST. TAMMANY PARISH GOVERNMENT, BY AND
THROUGH THE ST. TAMMANY PARISH COUNCIL; AND PATRICIA "PAT"
BRISTER, IN HER OFFICIAL CAPACITY AS PARISH PRESIDENT (Parish of
St. Tammany)
We granted writ of certiorari in this case to determine whether
the lower courts erred in finding that the St. Tammany Parish
District Attorney is not legally obligated and entitled to serve
as legal adviser to the St. Tammany Parish Council, Parish
President and all departments, offices and agencies, and
represent the Parish government in legal proceedings. For the
reasons that follow, we find that the lower courts did, in fact,
err, and we reverse the trial court’s grant of the St. Tammany
Parish Government’s Motion for Summary Judgment. Furthermore,
finding that there is no genuine issue of material fact that the
Louisiana Constitution, the laws of the State, and the St.
Tammany Parish Charter mandate that Applicant is the general
attorney for St. Tammany Parish, we grant the St. Tammany Parish
District Attorney’s Motion for Summary Judgment.
REVERSED AND RENDERED.
Retired Judge Michael Kirby, assigned as Justice ad hoc, sitting
for Guidry, J., recused.
GUIDRY, J., recused.
HUGHES, J., concurs and assigns reasons.
06/27/18
SUPREME COURT OF LOUISIANA
No. 2017-C-1811
WARREN MONTGOMERY, IN HIS OFFICIAL CAPACITY AS
DISTRICT ATTORNEY FOR ST. TAMMANY PARISH
VERSUS
ST. TAMMANY PARISH GOVERNMENT, BY AND THROUGH THE ST.
TAMMANY PARISH COUNCIL; AND PATRICIA "PAT" BRISTER, IN
HER OFFICIAL CAPACITY AS PARISH PRESIDENT
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF ST. TAMMANY
CLARK, Justice∗
We granted writ of certiorari in this case to determine whether the lower courts
erred in finding that the St. Tammany Parish District Attorney is not legally
obligated and entitled to serve as “legal adviser to the [Parish C]ouncil, [Parish
P]resident and all departments, offices and agencies, and represent the Parish
government in legal proceedings.”1 For the reasons that follow, we find that the
lower courts did, in fact, err, and we reverse the trial court’s grant of Respondent’s
Motion for Summary Judgment. Furthermore, finding that there is no genuine issue
of material fact that the Louisiana Constitution, the laws of the State, and the St.
Tammany Parish Charter mandate that Applicant is the general attorney for St.
Tammany Parish, we grant Applicant’s Motion for Summary Judgment.
FACTS AND PROCEDURAL HISTORY
On April 11, 2016, Applicant, Warren Montgomery, in his official capacity
as District Attorney for St. Tammany Parish, filed suit against the St. Tammany
Parish Government by and through the St. Tammany Parish Council, and Patricia
∗ Retired Judge Michael E. Kirby assigned as Justice ad hoc, sitting for Guidry, J., recused.
1
St. Tammany Parish Home Rule Charter, Section 4-03A.
1
"Pat" Brister in her official capacity as Parish President (collectively
"Respondents"). Applicant sought declaratory relief to determine whether the
District Attorney is legally obligated and entitled to serve as the legal advisor to, and
litigation counsel for, Respondents and whether Respondents' operation of an
independent legal department of St. Tammany Parish is contrary to law. Applicant
also sought preliminary and permanent injunctive relief consistent with the requested
declaratory relief.
Respondents filed dilatory exceptions of prematurity and unauthorized use of
summary proceeding, as well as peremptory exceptions of no cause of action and no
right of action. Respondents also answered the petition by denying Applicant's
claims and asserting several affirmative defenses. In the same pleading, Respondents
filed a reconventional demand for declaratory relief that La. R.S. 42:261-263, La.
R.S. 16:2 and Section 4-03 (A) of the St. Tammany Parish Home Rule Charter were
unconstitutional.
The parties briefed the issues, and after a hearing, the trial court denied
Respondents' exceptions of no cause of action and no right of action, but reserved
Respondents' right to re-urge those exceptions later. The court granted the
Respondents' exceptions of prematurity and improper use of summary proceeding.
The court also granted the exception of prematurity as to the claim for mandatory
injunctive relief and dismissed that claim without prejudice. The parties then
conducted limited written discovery.
Thereafter, in August and September 2016, the St. Tammany Parish Council
adopted two ordinances (the "Challenged Ordinances") that changed the nature of
the legal representation of the Parish. As a result, Respondents filed an amended
answer and supplemental peremptory exception of no cause of action, contending
that the new Challenged Ordinances mooted Applicant's claims.
2
Although the matter was scheduled for trial, the parties suggested, and the trial
court allowed, the filing of cross motions for summary judgment. On September 12,
2016, the trial court heard Respondents' supplemental peremptory exception of no
cause of action and the cross motions for summary judgment. The trial court took
the matter under advisement, and then rendered a Judgment and issued Reasons for
Judgment on September 18, 2016, denying Respondents' Supplemental Exception of
No Cause of Action, denying Applicant's Motion for Summary Judgment, and
granting Respondents' cross Joint Motion for Summary Judgment.
In those Reasons for Judgment, the trial court stated, in pertinent part:
[T]he above ordinances [Ordinance Calendar Nos. 5638 and 5644] are
determinative of this matter. The Defendants wish to continue
autonomously structuring, organizing and managing the legal staff as it
has for the past ten years. Parish officials do not wish to relinquish their
right to choose who represents or advises them in legal matters, and rely
solely and exclusively on the District Attorney's office. The ordinances
make that clear. The substance and passage of the ordinances are within
authority granted to Defendants under the Charter and applicable law
and are binding.
On a more practical note, there is obvious concern about the ability of
the District Attorney's office and parish government officials to work
together as a cohesive force for the betterment of the people of St.
Tammany Parish after this lawsuit if the Parish were forced to accept
the District Attorney as sole legal representative. With the filing of this
action, the District Attorney has taken on an adversarial position to the
Parish Council and the Parish President that presents a conflict of
interest, not only in this current action but quite possibly in future
actions. Disharmony and distrust would likely be the natural
consequence of these proceedings putting a burden on both parties that
would only make governing the Parish more difficult, and would not
serve the citizens of St. Tammany Parish well.
Mr. Montgomery as the Plaintiff would bear the burden of proof at a
trial on the merits. To prevail, he must show that the St. Tammany
Parish government is operating a legal department that is in
contravention of law and the Charter, and further that it [sic] the parish
government is preventing him from performing his duties and
exercising his power as the duly elected District Attorney. Given the
ability of a local government to opt out of the statutory scheme set forth
in La. R.S. 42:261 as provided for in [La.] R.S. 16:2, the rights and
powers set forth in the Home Rule Charter, and the two pertinent
3
ordinances passed within the power and authority of the Council, the
Court finds that Mr. Montgomery will be unable to meet that burden.2
The trial court also found that "it is unnecessary to examine the constitutional
claims for the disposition of this matter."3
On November 15, 2016, Applicant appealed this decision to the Court of
Appeal, First Circuit. After briefing and oral argument, on September 26, 2017, the
Court of Appeal affirmed the trial court's judgment, albeit with somewhat different
reasoning. Montgomery v. St. Tammany Par. Gov't by & through St. Tammany Par.
Council, 2017-0136 (La.App. 1 Cir. 9/26/17), 232 So. 3d 652. The Court of Appeal
found, in pertinent part, that:
In this case, as in Devall [v. Depaula, 96-1067 (La. App. 1 Cir. 5/9/97),
694 So. 2d 1137], the Parish President and Council have reorganized the
local government pursuant to the Home Rule Charter. The St.
Tammany Parish Home Rule Charter, Section 4–12, gives the Council
and the President the power to create, change, alter, consolidate, or
abolish Parish departments, including to reallocate functions, powers,
duties, and responsibilities of positions in such departments. St.
Tammany Parish Home Rule Charter Section 4–03, providing that the
district attorney shall serve as legal advisor to the council, president and
all departments, offices and agencies and represent the Parish
government in legal proceedings, must be read and construed within the
context of the entirety of the Home Rule Charter and the powers granted
to the STPG, including Section 4–12, which provides for reorganization
of the parish government.
Further, while Section 4–03(A) of the St. Tammany Parish Home Rule
Charter states that the District Attorney “shall” serve as legal advisor,
and “shall” is mandatory pursuant La. R.S. 1:3, the St. Tammany Parish
Home Rule Charter does not state that the District Attorney is the “sole”
or “exclusive” general legal advisor to the S[t.] T[ammany] P[arish]
G[overnment]. Likewise, the St. Tammany Parish Home Rule Charter
does not have any express limitation on the Council's or Parish
President's right to employ their own counsel to provide general legal
advice and services. The limitation is upon the hiring of counsel that is
special or “outside” counsel, which can only be hired through a written
contract approved by a majority of the council.
While Mr. Montgomery asserts that the ruling of the district court
allows the S[t.] T[ammany] P[arish] G[overnment] to decide when and
under what circumstances it can compel the District Attorney to
represent it, we find that the fact that the S[t.] T[ammany] P[arish]
2
Trial Court Reasons for Judgment, at 10-11. [Rec. at 684-685].
3
Trial Court Reasons for Judgment, at 2, n. 1. [Rec. at 676].
4
G[overnment] maintains a separate Legal Department to advise it on
civil legal matters does not mean that the District Attorney has been
compelled to do anything.
We find no genuine issue of material fact that Mr. Montgomery will be
unable to meet his burden to show that the defendants are operating a
civil legal department that is in violation of the law, or to show that the
defendants are preventing him from performing his duties as district
attorney.
Montgomery v. St. Tammany Par. Gov't by & through St. Tammany Par. Council,
2017-0136, 13-14 (La.App. 1 Cir. 9/26/17), 232 So. 3d 652, 660–61.
Thereafter, Applicant timely filed his writ application to this Court. On
January 29, 2018, this Court granted the writ and docketed the matter for the Court's
consideration. Montgomery, 2017-1811 (La. 1/29/18), 233 So. 3d at 609.
LAW AND ANALYSIS
This case involves interpreting the Constitution, statutes, and a home rule
charter. As we have stated many times before:
The fundamental question in all cases of statutory interpretation is
legislative intent and the ascertainment of the reason or reasons that
prompted the Legislature to enact the law. The rules of statutory
construction are designed to ascertain and enforce the intent of the
Legislature. Legislation is the solemn expression of legislative will, and
therefore, interpretation of a law involves primarily a search for the
Legislature's intent.
When a law is clear and unambiguous and its application does not lead
to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the
Legislature. When the language of the law is susceptible of different
meanings, it must be interpreted as having the meaning that best
conforms to the purpose of the law, and the words of law must be given
their generally prevailing meaning. When the words of a law are
ambiguous, their meaning must be sought by examining the context in
which they occur and the text of the law as a whole, and laws on the
same subject matter must be interpreted in reference to each other.
The meaning and intent of a law is determined by considering the law
in its entirety and all other laws on the same subject matter and placing
a construction on the provision in question that is consistent with the
express terms of the law and with the obvious intent of the Legislature
in enacting it. The statute must, therefore, be applied and interpreted in
a manner, which is consistent with logic and the presumed fair purpose
and intention of the Legislature in passing it.
5
This is because the rules of statutory construction require that the
general intent and purpose of the Legislature in enacting the law must,
if possible, be given effect Courts should give effect to all parts of a
statute and should not give a statute an interpretation that makes any
part superfluous or meaningless, if that result can be avoided. It is
likewise presumed that the intention of the legislative branch is to
achieve a consistent body of law. [Internal citations omitted].
Pumphrey v. City of New Orleans, 2005-0979 (La. 4/4/06, 10–11), 925 So. 2d 1202,
1209–10. By analogy, similar rules apply to interpreting the Constitution and home
rule charter. E. Baton Rouge Par. Sch. Bd. v. Foster, 2002-2799 (La. 6/6/03, 16),
851 So. 2d 985, 996.
The Louisiana Constitution is the supreme law of the State of Louisiana, to
which all legislative acts must yield. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-
2371 (La. 7/1/08, 22), 998 So. 2d 16, 31–32, amended on reh'g Sept. 19, 2008). As
pertains to this matter, the Constitution states:
Except as otherwise provided by this constitution, a district attorney, or
his designated assistant, shall have charge of every criminal prosecution
by the state in his district, be the representative of the state before the
grand jury in his district, and be the legal advisor to the grand jury. He
shall perform other duties provided by law.
La. Const. art. V, § 26(B). As authorized by the Constitution, the legislature has
assigned other duties to district attorneys. These duties require district attorneys to
be the regular attorneys for parish governments within their districts. 4, 5 Parishes
which have adopted a home rule charter, as St. Tammany Parish has, may employ a
4
The district attorneys of the several judicial districts of Louisiana, other than the parish of
Orleans, shall ex officio be the regular attorneys and counsel for the police juries, parish school
boards, and city school boards within their respective districts . . . La. R.S. 16:2(A)
5
[T]he district attorneys of the several judicial districts other than the parish of Orleans shall, ex
officio and without extra compensation, general or special, be the regular attorneys and counsel
for the parish governing authorities . . . within their respective districts . . . La. R.S. 42:261(A)
6
parish attorney or special counsel, rather than using the services or the district
attorney as its regular attorney, but only if the charter so provides. 6
Just as the Constitution is the supreme law of the state, home rule charters are
the supreme law of home rule charter jurisdictions, subordinate only to the
constitution and constitutionally allowed legislation. See Miller v. Oubre, 96-2022
(La. 10/15/96, 9–10), 682 So. 2d 231, 236 (“The power of a home rule government
within its jurisdiction is as broad as that of the state, except when limited by the
constitution, laws permitted by the constitution, or its own home rule charter.”). See
also, Morial v. Smith & Wesson Corp., 2000-1132 (La. 4/3/01, 16), 785 So. 2d 1, 14
(“[T]his court has recognized that, in affairs of local concern, a home rule charter
government possesses powers which within its jurisdiction are as broad as that of
the state, except when limited by the constitution, laws permitted by the constitution,
or its own home rule charter.”).
The St. Tammany Parish Home Rule Charter states:
Except as otherwise provided by this charter the Parish government
shall continue to have all the powers, rights, privileges, immunities and
authority heretofore possessed by St. Tammany Parish under the laws
of the state. The government shall have and exercise such other powers,
rights, privileges, immunities, authority and functions not inconsistent
with this charter as may be conferred on or granted to a local
governmental subdivision by the constitution and general laws of the
state, and more specifically, the government shall have and is hereby
granted the right and authority to exercise any power and perform any
function necessary, requisite or proper for the management of its
affairs, not denied by this charter, or by general state law, or
inconsistent with the constitution.
6
Where a parish has adopted a charter for local self-government or other home rule charter and
such charter provides for the employment of a parish attorney or a special attorney or counsel, the
district attorney shall not be the regular attorney or counsel for such governing authority.
* * *
[I]n a parish which has adopted a charter for local self-government or other home rule charter, if
the charter so provides, the parish governing authority may retain or employ any attorney or
counsel to represent it generally or retain or employ any special attorney or counsel to represent it
in any special matter without the approval of the attorney general. La. R.S. 16:2(D).
7
St. Tammany Par. Home Rule Charter, §1-04. The Charter, therefore, recognizes
the supremacy of the Constitution and the laws of the State. Further, the Charter
establishes:
A. The district attorney of the judicial district serving St. Tammany
Parish shall serve as legal adviser to the council, president and all
departments, offices and agencies and represent the Parish
government in legal proceedings.
B. No special legal counsel shall be retained by the Parish government
except by written contract for a specific purpose approved by the
favorable vote of a majority of the authorized membership of the
council. Such authorization shall specify the compensation, if any,
to be paid for such services.
St. Tammany Par. Home Rule Charter, §4-03, Legal Department. Applying the clear
and unambiguous language of the Charter, read in pari materia with La. R.S. 16:2
and 42:261, the district attorney is the legal advisor to the Parish Government and is
to represent the Parish in legal proceedings.
Respondents make several arguments in opposition to this finding. First,
Respondents argue that the Constitution and above statutes allow home rule charter
governments to opt out of having the district attorney be the regular attorney for the
governing authority. Although Respondents are correct in that respect, the St.
Tammany Parish Home Rule Charter does not “opt out” of such representation. In
fact, the Charter specifically states that the District Attorney is the “adviser to the
council, president and all departments, offices and agencies,” and is to “represent
the Parish government in legal proceedings.”
Respondents further argue that La. R.S. 16:2(D) gives three different
mechanisms by which a home rule charter government may opt out: (1) by hiring a
parish attorney, (2) by hiring a special attorney, or (3) by hiring counsel. Under each
of these three situations, Respondents claim a parish government should be deemed
to have opted out. Respondents ignore, however, the words of the Charter, which
anoints the District Attorney as the legal advisor to the government and the person
8
who represents the government in legal proceedings. Further, the Charter authorizes
the hiring of special legal counsel only for specific purposes and not for general
purposes. Respondents also disregard the second paragraph of La. R.S. 16:2(D),
which allows a parish to retain counsel to represent it generally only if the charter so
provides. The St. Tammany Parish Charter does not provide for general
representation by any attorney other than the District Attorney. As the Charter’s
language makes clear, the District Attorney is the general attorney for the Parish
government, although special counsel may be hired for specific purposes.
Respondents’ arguments would reverse that, enabling the Parish to retain special
counsel to be the general attorney for the Parish, while the District Attorney would
handle only specific cases upon request of the Parish Government. The language
relied on by Respondents cannot be considered an “opt out.” Thus, this argument is
without merit.
Next, Respondents argue that by including a section in the Charter entitled
“Legal Department,” the Charter authorizes the Parish President to appoint a director
and employees to staff the department, as authorized by the Charter’s Section 3-09,7
and to supervise and control the department, as authorized by Section 3-01.8 To the
contrary, however, Section 4-03 effectively establishes the District Attorney as the
7
A. The president as chief executive officer of the Parish government shall have the following
powers and duties:
* * *
(2) Appoint and suspend or remove for just cause all Parish government employees and appointive
administrative officers provided for by or under this charter, except as otherwise provided by this
charter or other personnel rules adopted pursuant to this charter. The president may authorize any
administrative officer who is subject to the president's direction and supervision to exercise these
powers with respect to subordinates in the officer's department, office or agency.
(3) Direct and supervise the administration of all departments, offices and agencies of the Parish
government, except as otherwise provided by this charter. St. Tammany Par. Home Rule Charter,
§3-09.
8
The president shall be the chief executive officer of the Parish government and shall exercise
general executive and administrative authority over all departments, offices and agencies of the
Parish government, except as otherwise provided by this charter. St. Tammany Par. Home Rule
Charter, §3-01.
9
department head, designating the District Attorney as the “legal advisor” and
representative of the Parish in legal proceedings. Furthermore, the Constitution does
not allow a home rule charter to contain any provision which affects the office of
district attorney inconsistent with the Constitution or law. La. Const. art. VI, §5(G).
Next, Respondents argue that the Charter’s Section 4-01 9 (along with Sections
3-01 and 3-09) allows the Parish President to appoint the Director of the Legal
Department. Section 4.01 provides that the Parish President may appoint department
directors “except as otherwise provided by this charter,” but the Charter effectively
establishes the District Attorney as the Director of the Legal Department. As
Respondents recognize above, La. R.S. 16:2 provides the mechanism by which a
charter government may opt out of using the district attorney as its general attorney.
Presidential appointment is not included in the mechanism.
Respondents next argue that Section 4-1210 of the Charter allows the President
and Parish Council to create, change, alter, consolidate, or abolish Parish
departments, including the power to reallocate the functions, powers, duties and
responsibilities of positions in such departments. Respondents attempted to
9
A. Except as otherwise provided by this charter all departments, offices and agencies shall be
under the direction and supervision of the president. The directors of all departments and agencies
created by or under this charter shall be appointed by the president, subject to council approval,
and shall serve at the pleasure of the president, except as otherwise provided by this charter. St.
Tammany Par. Home Rule Charter, §4-01.
10
A. The president may propose to the council the creation, change, alteration, consolidation or
abolition of Parish departments, offices and agencies and the reallocation of the functions, powers,
duties and responsibilities of such departments, offices or agencies, including those provided for
in this charter.
B. Upon receipt of the president's proposed plan of reorganization, the presiding officer of the
council shall cause to be introduced an ordinance to implement the proposed reorganization plan.
The ordinance shall follow the same procedure as provided in the section on "Ordinances in
General" of this charter.
C. The reorganization plan submitted by the president shall become effective if the council fails to
act on the proposed reorganization within ninety (90) days of its submission to the council. . St.
Tammany Par. Home Rule Charter, §4-12.
10
accomplish this reorganization by passing the Challenged Ordinances. The
Challenged ordinances provide, in pertinent part:
c. The Council shall appoint one (1) or more attorneys as necessary
Council staff members and who shall serve at the pleasure of the
Council. The Council Attorney(s) shall (1) serve as legal advisor(s) to
the Council, respective staff members, and boards and commissions
established by Council, all as directed by the Council; (2) represent
and/or direct representation for the Council in conjunction with Parish
Government in legal proceedings; (3) represent boards and
commissions established by the Council and as directed by the Council;
and (4) co-administer Parish litigation with Parish President appointed
attorneys and jointly represent the Parish Government with Parish
President attorneys.
St. Tammany Parish Code of Ordinances, Sec. 2-035.00.
The general duties and responsibilities of each office and/or department
herein shall be as follows:
A. To perform such services as is necessary to carry out its legislative
functions.
B. To ensure the safety, health and well-being of the citizens of this
Parish.
C. To be responsive and responsible to the needs of the citizens of St.
Tammany Parish.
D. To perform other such activities not enumerated herein as directed
by the President, Chief Administrative officer and/or Deputy Chief
Administrative Officer(s).
The further duties of these offices, agencies and/or departments shall
be as follows:
***
8. The Legal Department. The President shall appoint an Executive
Counsel who shall serve at the pleasure of the President. The Executive
Counsel shall: (1) subject to the Council’s approval pursuant to Home
Rule Charter Section 4-01(A), be the Director of the Legal Department;
(2) direct the Legal Department and its respective staff members,
including attorneys; (3) serve as legal adviser to the President, parish
employees and all departments comprising Parish Administration; all
as directed by the Parish President; (4) represent and/or direct
representation for the Parish President and Parish Administration in
conjunction with Parish Government in legal proceedings; and (5)
coadminister with Council Attorneys all legal proceedings and
litigation involving Parish Government and jointly represent the Parish
Government with Council Attorneys in such proceedings. All attorneys
in the Legal Department shall be Parish President appointed attorneys
11
subject to Section 3-09 of the Home Rule Charter. The Legal
Department shall include the Office of Risk Management. Said duties
shall include, but not be limited to, any and all actions necessary to
carry out the functions of the Department.
Pursuant to Home Rule Charter Section 4-03(A), the District Attorney
of the judicial district serving St. Tammany Parish shall, upon the
request of the Parish Government: (a) serve as legal adviser to any
departments, offices, and agencies of the Parish Government, and (b)
represent the Parish Government in legal proceedings; provided,
however, that the District Attorney has no conflict of interest with
respect to any such matter for which such a request is made.
Nothing herein shall alter or change the procedure for retaining special
legal counsel as set forth in Home Rule Charter Section 4-03(B).
St. Tammany Parish Code of Ordinances, Sec. 2-092.00.
In support of this argument, Respondents cite to Devall v. Depaula, 1996-
1067 (La. App. 1 Cir. 5/9/97), 694 So. 2d 1137. In that case, the mayor of the City
of Hammond, a charter city, proposed to change the police chief’s role with respect
to the police department, which was set forth in the city’s charter, and to reallocate
certain of the chief’s functions to a newly-created administrative position pursuant
to Section 4-10 of the Hammond City Charter.11 Devall, 694 So. 2d at 1139. The
court of appeal concluded that the charter gave the mayor the power to propose the
change, and the council the power to implement it by ordinance pursuant to the
reorganization powers “without the necessity of a time consuming and expensive
11
A. The mayor shall have the right as chief executive officer to propose to the council the creation,
change, alteration, combination or abolition of City departments, offices or agencies and/or the
reallocation of the functions, powers, duties, and responsibilities of such agencies including those
provided in this charter.
B. At the meeting of the council at which the reorganization plan is submitted, the council shall
order a public hearing on the plan to be held within thirty (30) days. The council shall cause to be
published in the official journal at least ten (10) days prior to the date of such hearing, the time
and place thereof, a general summary of the reorganization plan and the times and places where
copies of the proposed reorganization plan are available for public inspection. At the time and
place so advertised, the council shall hold a public hearing on the reorganization plan as submitted.
C. The council shall within sixty (60) days following the date of the public hearing either approve
or disapprove, but not amend, the proposed reorganization plan. Should the council fail to act
within the prescribed time, the plan shall be deemed approved. City of Hammond Home Rule
Charter, §4-10.
12
public referendum each time such action was contemplated.” Devall, 694 So. 2d at
1142.
The situation in Devall is distinguishable from that before us now. There, the
charter gave the mayor and city council the power to reorganize city departments,
including those created by the charter, which the city did by passing ordinances
reorganizing the police department.
Here, likewise, the Parish President and Parish Council passed the Challenged
Ordinances in accordance with Section 4-12 of the St. Tammany Parish Charter in
an attempt to reorganize the Legal Department of the Parish. In this case, though,
rather than reorganizing a department created exclusively by the Charter, the Parish
Legal Department is a creation of not only the Charter, but of the Constitution and
the statutory laws of the State, which name the District Attorney as the general
attorney for the Parish, unless the Parish opts out of such an arrangement. As
discussed above, the Charter does not indicate the Parish has opted out. Because the
Charter does not specify that the Parish has opted out, in order to do so, the Charter
must be amended in accordance with Section 7-01 12 in order for the Parish to opt out
of such representation.
Additionally, Respondents argue that the Louisiana Rules for Professional
Conduct prohibit the District Attorney from representing the Parish Government,
citing to Succession of Wallace, 574 So. 2d 348 (La. 1991). In Wallace, this Court
examined the constitutionality of La. R.S. 9:2448, which required the executor of a
12
This provision provides in pertinent part:
A. Proposals to amend or repeal this charter may be made by a two-thirds vote of the authorized
membership of the council or by petition signed by not less than twenty (20) percent of the total
number of registered voters of the Parish. A petition shall contain the full text of the proposed
amendment, amendments, or repeal of the charter. . .
13
decedent’s estate to accept the attorney designated in the testator’s will as the counsel
for the executor and the estate, unless there was just cause to dismiss the attorney.
In making its determination, the Court stated:
This court has exclusive and plenary power to define and regulate all
facets of the practice of law, including the admission of attorneys to the
bar, the professional responsibility and conduct of lawyers, the
discipline, suspension and disbarment of lawyers, and the client-
attorney relationship. The sources of this power are this court's inherent
judicial power emanating from the constitutional separation of powers.
The standards governing the conduct of attorneys by rules of this court
unquestionably have the force and effect of substantive law.
Conversely, the legislature cannot enact laws defining or regulating the
practice of law in any aspect without this court's approval or
acquiescence because that power properly belongs to this court and is
reserved for it by the constitutional separation of powers. Accordingly,
a legislative act purporting to regulate the practice of law has
commendatory effect only until it is approved by this court as a
provision in aid of its inherent judicial power. This court will ratify
legislative acts that are useful or necessary to the exercise of its inherent
judicial power, but it will strike down statutes which tend to impede or
frustrate its authority.
Wallace, 574 So. 2d at 350.
Based on the above tenets, the Court found that the statute did interfere with
its exclusive and plenary power to define and regulate all facets of the practice of
law granted to the Court by the Constitution. In support of its reasoning, the Wallace
court recognized:
[A]ppointments [of attorneys in a testator’s will] cause serious ethical
concerns. Any knowledgeable lawyer knows that there are instances in
which attorneys have improperly solicited future business by
suggesting such a designation to the testator who in many instances
does not realize that he is involved in a solicitation or a business
transaction with the attorney or that he is in effect making a
testamentary gift to the attorney. In some instances the provision is
simply inserted into the will without specifically discussing the
designation with the testator. Of course, the actual facts in a particular
situation are virtually impossible to ascertain because the testator is
dead by the time the issue is raised and the attorney-draftsman is usually
the only other witness to the transaction. Moreover, the lawyer's self-
interest in securing lucrative positions under the will creates a
disincentive to advise the client about alternative methods of wealth
transfer-such as outright gifts-that do not require the additional
expenses of executors, trustees, and lawyers. Most egregious is the fact
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that the executor-designee and members of the testator's family may be
misled into believing that they must retain the services of the attorney
named in the will. Thus, in the case in which the testator had no genuine
preference in the matter, but simply acceded to the provision inserted
by the drafting attorney in the belief that it was routine boilerplate, the
attorney's will is the only one which is truly implemented.
Wallace, 574 So. 2d at 354.
Here, the dangers noted by the Wallace court are inapplicable. The District
Attorney has not inserted himself into parish governments unbeknownst to the
remainder of the government. Rather, he is an elected official and his duties are
assigned by the Constitution and statutory law. Neither is the District Attorney
improperly soliciting future business – again, the business of representing parish
governments is assigned to him by the Constitution and statutory law. Nor has the
District Attorney inserted himself into representing the Parish Government, nor does
he have disincentives to advise his clients of alternative methods of wealth transfer,
nor has the Parish Government been misled into believing that it must retain the
services of the District Attorney. Indeed, it is not the will of the District Attorney
which is being implemented, but the will of the citizens of the State, through the
Constitution and the laws of the State, and the citizens of St. Tammany Parish,
through the St. Tammany Parish Charter.
Finally, the Wallace court found that the statute unconstitutionally interfered
with this Court’s exclusive and plenary power to define and regulate all facets of the
practice of law by leaving clients no recourse in discharging their attorney with or
without cause. Wallace, 574 So. 2d at 355. Here, in contrast, the Constitution and
statutes give the Parish Government a method to discharge its attorney from
particular civil matters with or without cause – by amending the Charter in
accordance with La. Const. art. VI, § 5 and opting out of representation by the
District Attorney. These statutes assigning district attorneys as general attorneys for
15
the parishes do not unconstitutionally impede or frustrate this Court’s exclusive and
plenary power to define and regulate all facets of the practice of law.
Next, Respondents argue that ethical considerations bar their representation
by the District Attorney. Because the President and Council are not always
completely aligned, they argue, they need separate counsel. Further, they argue, the
District Attorney may have loyalties to third parties which would impede his
representation of the Parish Government. As stated in the dissent in the court of
appeal, these situations are hypotheticals. Furthermore, the District Attorney is
subject to the Code of Professional Responsibilities if conflict arises. If such a
specific situation arises, the Charter authorizes the Parish to hire special counsel to
handle that specific purpose.
Finally, in the alternative, Respondents complain that Section 4-03(A)
(establishing the Parish Legal Department), La. R.S. 16:2 (describing “Duty of
district attorney to act as counsel for parish boards and commissions”) and La. R.S.
42:261 (also describing “District attorneys; counsel for boards and commissions”)
are unconstitutional. More specifically, with regard to Section 4-03(A),
Respondents urge that the section violates the prohibitions contained in Article VI,
§ 5(E)13 and 6 14 of the State Constitution. With respect to La. R.S. 16:2 and 42:261,
Respondents argue that the statutes are unconstitutional special laws.
As to Section 4-03, Respondents claim that the section interferes with their
“exercise of any power and performance of any function necessary, requisite, or
proper for the management of [their] affairs, not denied by general law or
13
(E) Structure and Organization; Powers; Functions. A home rule charter adopted under this
Section shall provide the structure and organization, powers, and functions of the government of
the local governmental subdivision, which may include the exercise of any power and performance
of any function necessary, requisite, or proper for the management of its affairs, not denied by
general law or inconsistent with this constitution.
14
The legislature shall enact no law the effect of which changes or affects the structure and
organization or the particular distribution and redistribution of the powers and functions of any
local governmental subdivision which operates under a home rule charter.
16
inconsistent with this constitution.” La. Const. art. VI, § 5 (E). They further argue
that the section “changes or affects the structure and organization or the particular
distribution and redistribution of the powers and functions of any local governmental
subdivision which operates under a home rule charter.” La. Const. art. VI, § 6.
To the contrary, however, Section 4-03 does not interfere with St. Tammany
Parish’s “exercise of any power and performance of any function necessary,
requisite, or proper for the management of its affairs” in violation of Article V § 5
(E). Instead, Section 4-03 establishes, as authorized in the Constitution, a portion of
the “structure and organization” of the Parish Government, which was approved by
the voters of St. Tammany Parish when the Charter was established. As we
recognized above, the Charter contains the method for changing this particular
“structure and organization” of the Parish Government, if that is what the voters
desire. Further, it was not the legislature that enacted Section 4-03, but, instead, the
voters of St. Tammany Parish. Therefore, Section 4-03 does not run afoul of Article
VI, § 6.
Next, Respondents argue that La. R.S. 16:2 and 42:261 violate La. Const. art.
Article III, § 12, 15 which prohibits the legislature from passing a special law
concerning civil actions. We find this line of argument not only unavailing as a
matter of law, but it is also an example of a failed “end run” past the Respondents’
unsuccessful effort to have their electorate amend their home rule charter to obtain
the relief Respondents now seek from this court.
Even if we accepted, for the sake of argument, that there was some
constitutional infirmity with these statutes, Respondents would still be required to
amend their home rule charter to obtain the result they seek. Stated differently,
15
Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a
local or special law . . .
17
because Respondent’s home rule charter requires the District Attorney to serve as
Respondents’ general legal representative, regardless of whether the statutes are
constitutional or not, the charter would have to be amended to alter the District
Attorney’s role. However, “[w]e have consistently held that courts should refrain
from reaching or determining the constitutionality of legislation unless, in the
context of a particular case, the resolution of this is essential to the decision of the
case or controversy.” See Cat's Meow, Inc. v. City of New Orleans Through Dep't
of Fin., 98-0601 pp. 16-17 (La. 10/20/98), 720 So. 2d 1186, 1199. As just
demonstrated, even if we found the complained-of statutes to be unconstitutional,
Respondents still could not alter the District Attorney’s role without amending their
Charter. Thus, resolution of the question of whether the complained-of statutes are
unconstitutional as local or special laws is not necessary in this case, and consistent
with our longstanding practice, we decline to pass judgment on the constitutionality
of legislation when we are not required to do so. See Cat's Meow, 720 So. 2d at 1199.
CONCLUSION
For the above and foregoing reasons, we reverse the judgment that granted
summary judgment in favor of the St. Tammany Parish Government and denied the
District Attorney's cross-motion for summary judgment. Furthermore, we render
summary judgment in favor of the District Attorney for St. Tammany Parish. All
costs associated with this appeal shall be assessed against the St. Tammany Parish
Government.
REVERSED AND RENDERED.
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06/27/18
SUPREME COURT OF LOUISIANA
No. 2017-C-1811
WARREN MONTGOMERY, IN HIS OFFICIAL CAPACITY AS DISTRICT
ATTORNEY FOR ST. TAMMANY PARISH
VERSUS
ST. TAMMANY PARISH GOVERNMENT, BY AND THROUGH THE ST.
TAMMANY PARISH COUNCIL; AND PATRICIA “PAT” BRISTER, IN
HER OFFICIAL CAPACITY AS PARISH PRESIDENT
ON WRIT OF CERTIORARI T OTHE COURT OF APPEAL, FIRST
CIRCUIT, PARISH OF ST. TAMMANY
Hughes, J., concurring.
No one contests that the District Attorney has complete control of criminal
matters and is the general counsel for parish government. However, it is absurd to
think that the parish cannot retain separate counsel in specific civil matters,
especially when the district attorney may be the opposing party. The mechanism
here has been confusing, but I see no reason why the parish cannot vote to hire
separate counsel in specific matters.