In Re Matter Under Investigation by the Jefferson Parish Office of Inspector General No. 2018-0028 ( 2019 )

IN RE MATTER UNDER INVESTIGATION BY NO. 19-CA-485
THE JEFFERSON PARISH OFFICE OF C/W
INSPECTOR GENERAL NO. 2018-0028 19-CA-486
C/W FIFTH CIRCUIT
MARK SPEARS COURT OF APPEAL
VERSUS STATE OF LOUISIANA
JEFFERSON PARISH OFFICE OF
INSPECTOR GENERAL
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 789-232 C/W 793-101, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
December 11, 2019
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and John J. Molaison, Jr.
MOTION TO DISMISS GRANTED; APPEAL DISMISSED
SJW
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL
Kim C. Raines Chatelain
COUNSEL FOR DEFENDANT/APPELLEE,
COUNCILMAN MARK SPEARS
Richard T. Simmons, Jr.
W. Evan Plauche'
Michael L. Cohen
WINDHORST, J.
Appellant, the Jefferson Parish Office of Inspector General (“JPOIG”) appeals
the trial court’s June 21, 2019 judgment granting the petition for declaratory
judgment filed by Councilman Mark Spears, an elected member of the Jefferson
Parish Council, and ordering the JPOIG to provide Councilman Spears a “fair
description of the subject matter of the subpoena ad testificandum, and of any
documents to be reviewed during his interview, so that he may assert any legislative
privilege that may exist prior to being interviewed.” Appellee, Councilman Spears,
has filed a Contested Motion to Dismiss Appeal for Lack of Jurisdiction and to
Suspend Briefing Delays, arguing that on October 21, 2019, this Court vacated the
June 21, 2019 judgment and remanded the matter for further proceedings.
Therefore, he argues that this Court lacks jurisdiction. Finding that the June 21,
2019 judgment was vacated on October 21, 2019, we grant the motion and dismiss
this appeal.
FACTS AND PROCEDURAL HISTORY
The JPOIG is a department of the Jefferson Parish government created by
Jefferson Parish Code of Ordinances (“JPCO”) §2-155.10. The JPOIG may make
investigations and examinations, within or outside of the State of Louisiana as it
deems necessary, in order to carry out the duties of its mandate under law, and may
gather evidence in any legally appropriate manner. La. R.S. 33:9613 A(1). In the
performance of its duties, an office of inspector general may compel the attendance
of witnesses to be deposed under oath by issuing a subpoena upon judicial approval
from the trial court. La. R.S. 33:9613 A(3). If a person refuses to obey a subpoena
issued by the JPOIG, the trial court may issue an order requiring the person to appear
before the trial court to show cause why an order shall not be issued ordering such
person to obey the subpoena. Id.
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Councilman Spears is an elected official and is subject to the jurisdiction of
the JPOIG. La. R.S. 33:9613. It is the duty of every official to cooperate with the
JPOIG in any investigation. JPCO §2-155.10(19). JPOIG has asserted that
commencing in 2018, it made several attempts, to no avail, to schedule an interview
with Councilman Spears in regards to an open matter under the investigative
jurisdiction of the JPOIG.
Pursuant to La. R.S. 33:9613 A(3), the JPOIG initiated a summary proceeding
by filing a motion for subpoena ad testificandum in the 24th Judicial District Court,
In re Matter Under Investigation by the Jefferson Parish Office of Inspector General,
case number 789-232, Division “I,” seeking approval from the trial court for the
issuance of a subpoena ad testificandum to Councilman Spears. On November 30,
2018, the trial court granted an order authorizing the JPOIG to issue the subpoena
ad testificandum. Councilman Spears was served with the subpoena ordering him
to appear at the JPOIG’s office on December 7, 2018 to be interviewed, to which
Councilman Spears did not appear. On December 12, 2018, the JPOIG filed a
Motion for Show Cause Hearing on Subpoena Ad Testificandum, which was set for
January 10, 2019. The matter was continued without date on Councilman Spears’
unopposed motion to continue and reset hearing.
On March 14, 2019, Councilman Spears filed a Petition for Declaratory
Judgment, an ordinary proceeding, in the 24th Judicial District Court entitled Mark
Spears v. Jefferson Parish Office of Inspector General, No. 793-101, Division “A.”
The petition sought a judgment declaring that prior to being interviewed,
Councilman Spears is entitled to a fair description of the subject matter of the
subpoena ad testificandum and of any documents to be reviewed in regards with his
interview, in order that he may be able to evaluate whether the subject matter or
documents may be subject to any legislative immunity or privilege afforded him by
law.
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On March 27, 2019, the JPOIG filed a motion to reset hearing on its subpoena
ad testificandum and for sanctions. JPOIG’s motion was set for hearing on April 25,
2019. Councilman Spears filed an opposition. On April 25, 2019, JPOIG’s rule to
show cause on its subpoena ad testificandum and for sanctions was continued to May
30, 2019.
On April 30, 2019, the JPOIG filed a motion to transfer and consolidate the
petition for declaratory judgment pending in Division “A,” with the rule to show
cause on the JPOIG’s subpoena ad testificandum and for sanctions in Division “I.”
The trial court set the motion to transfer and consolidate for hearing on May 30,
2019.
On May 30, 2019, the trial court granted the motion to consolidate. The same
day, the trial court in Division “A” agreed to transfer the petition for declaratory
judgment to Division “I” and a judgment was signed transferring and consolidating
the matters. After argument of counsel, the trial court also granted the petition for
declaratory judgment ordering the JPOIG to provide a fair description to
Councilman Spears as to the subject matter in order that he may assert any privilege
prior to being interviewed, and a fair description of any documents which will be
reviewed with Councilman Spears during the interview. On June 21, 2019 the trial
court issued a written judgment granting Councilman Spears’ petition for declaratory
judgment.
JPOIG filed a request for written reasons and a notice of intent to seek
supervisory writs of the trial court’s June 21, 2019 judgment. On July 19, 2019, the
trial court issued written reasons in which the trial court stated that Councilman
Spears’ petition for declaratory judgment came before the trial court on May 30,
2019. By separate motion and order filed on July 19, 2019, the JPOIG also filed a
motion for appeal of the June 21, 2019 judgment. JPOIG’s writ application was
19-CA-485 C/W 19-CA-486 3
filed with this Court on July 29, 2019. The appeal was lodged with this Court on
October 3, 2019.
On October 21, 2019, after considering JPOIG’s supervisory writ application
seeking review of the June 21, 2019 judgment, this Court granted the writ for the
limited purpose of vacating the trial court’s June 21, 2019 judgment and remanding
the matter for further proceedings. In re Matter Under Investigation by the Jefferson
Parish Office of Inspector General c/w Mark Spears v. Jefferson Parish Office of
Inspector General, 19-359 (La. App. 5 Cir. 10/21/19) (unpublished writ disposition).
On appeal, the JPOIG seeks review of the trial court’s June 21, 2019
judgment. Councilman Spears filed a contested motion to dismiss this appeal
asserting that because the trial court’s June 21, 2019 judgment was vacated by this
Court on October 21, 2019, this Court now lacks jurisdiction and the appeal should
be dismissed pursuant to La. C.C.P. art. 2162. The JPOIG filed an opposition to the
motion to dismiss arguing that “the basis for the court’s jurisdiction is the order
granting an appeal which was signed on July 22, 2019.”
DISCUSSION
Before considering the merits in any appeal, appellate courts have the duty to
determine sua sponte whether subject matter jurisdiction exists, even when the
parties do not raise the issue. Input/Output Marine Sys. v. Wilson Greatbatch Techs.,
Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This Court cannot reach
the merits of an appeal unless our jurisdiction has been properly invoked by a valid
final judgment. Id.; Gabriel v. Delta Air Lines, Inc., 16-210 (La. App. 5 Cir.
10/19/16), 202 So.3d 1184, 1185-1186; Morraz-Blandon v. Voiron, 16-112 (La.
App. 5 Cir. 08/25/16), 199 So.3d 1220, 1221; See also La. C.C.P. art. 2083.
After review of this matter, we find that the June 21, 2019 judgment appealed
in this case was previously vacated by this Court on October 21, 2019, leaving no
judgement for this Court to review on appeal. We therefore lack appellate
19-CA-485 C/W 19-CA-486 4
jurisdiction in this matter. Accordingly, Councilman Spear’s motion to dismiss
appeal is granted, and this appeal is dismissed.
MOTION TO DISMISS GRANTED; APPEAL DISMISSED
19-CA-485 C/W 19-CA-486 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 11, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-485
C/W 19-CA-486
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
KIM C. RAINES CHATELAIN (APPELLANT) RICHARD T. SIMMONS, JR. (APPELLEE)
MAILED
W. EVAN PLAUCHE' (APPELLEE) MICHAEL L. COHEN (APPELLEE)
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