Opinion
2015 CA 1352
09-16-2016
IN THE MATTER OF CHARLES R. JONES
Veleka Eskinde New Orleans, Louisiana Attorney for Plaintiff/Appellant Charles R. Jones Charles R. Jones New Orleans, Louisiana Pro Se Tracy M. Barker Kathleen M. Allen Michael D. Dupree Baton Rouge, Louisiana Attorneys for Defendant/Appellee Louisiana Board of Ethics
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE ETHICS ADJUDICATORY BOARD STATE OF LOUISIANA, DIVISION OF ADMINISTRATIVE LAW
DOCKET NUMBER 2015-3091-ETHICS-B HONORABLE CHARLES PERRAULT, KARLA COREIL, AND ROMAINE WHITE ADMINISTRATIVE LAW JUDGES Veleka Eskinde
New Orleans, Louisiana Attorney for Plaintiff/Appellant
Charles R. Jones Charles R. Jones
New Orleans, Louisiana Pro Se Tracy M. Barker
Kathleen M. Allen
Michael D. Dupree
Baton Rouge, Louisiana Attorneys for Defendant/Appellee
Louisiana Board of Ethics BEFORE: PETTIGREW, McDONALD, and DRAKE, JJ. McDONALD, J.
In this appeal, Charles R. Jones, a retired state appellate judge, challenges a decision by the Louisiana Ethics Adjudicatory Board (EAB), affirming the Board of Ethics' (BOE) assessment of a $1,500 late filing fee to him for his failure to file a personal financial disclosure statement as a former member of the Louisiana Commission on Law Enforcement and the Administration of Criminal Justice (Commission). We dismiss the appeal.
After Judge Jones's appeal was lodged, the BOE filed a motion to dismiss the appeal due to a late and/or non-compliant brief, or, alternatively, to deny his right to orally argue his case. We denied that motion in open court on August 8, 2016.
DISCUSSION
It is undisputed that, as a member of the Commission, Judge Jones was required by LSA-R.S. 42:1124.2.1(A)(1) to file an annual financial statement. On appeal, he argues that the BOE did not have the authority to require that he file this financial statement, because the Louisiana Supreme Court has exclusive authority to govern judges under LSA-R.S. 42:1167; the Supreme Court requires judges to file an annual personal financial disclosure statement under Louisiana Supreme Court Rule 39; and, LSA-R.S. 42:1124.2.1(A)(1)'s requirement that he file a financial statement as a Commission member unconstitutionally violates the separation of powers doctrine by impinging upon the Supreme Court's exclusive authority to govern judges.
In his pleadings and arguments before the EAB, Judge Jones did not specifically allege that LSA-R.S. 42:1124.2.1(A)(1) is unconstitutional. He filed exceptions of lack of subject matter jurisdiction, no cause of action, and no right of action, essentially challenging the BOE's authority to act under the statute - but, he did not particularly allege that the statute itself unconstitutionally violated the separation of powers doctrine. And, in affirming the BOE's late filing fee assessment to Judge Jones, the EAB did not expressly rule on Judge Jones's exceptions nor address his separation of powers argument.
There is no single procedure for attacking the constitutionality of a statute. A party making such a challenge, however, must follow a three-step process. First, he must raise the unconstitutionality in the trial court; second, he must specially plead the unconstitutionality of a statute in a pleading; and third, he must particularize the grounds outlining the basis of unconstitutionality. State v. Overstreet, 12-1854 (La. 3/19/13), 111 So.3d 308, 314-316; see Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65. Judge Jones's challenge to LSA-R.S. 42:1124.2.1(A)(1) does not follow this process. Further, even had the process been followed, the EAB would not have been able to rule on the issue, because administrative agencies lack the power to determine the constitutionality of a statute. Albe v. Louisiana Workers' Compensation Corp., 97-0581 (La. 10/21/97), 700 So.2d 824, 827; ANR Pipeline Co. v. Louisiana Tax Com'n, 02-1479 (La. 7/2/03), 851 So.2d 1145, 1150.
Several exceptions to this general rule have been recognized: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court; or (4) when an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue is made to appear as an error patent on the face of the record. Unwired Telecom Corp. v. Par. of Calcasieu, 03-0732 (La. 1/19/05), 903 So.2d 392, 399 n.5 (citing Mosing v. Domas, 02-0012 (La. 10/15/02), 830 So.2d 967, 975 n.2).
Rather, Louisiana district courts have original jurisdiction over all civil and criminal matters, and this jurisdiction includes the power to rule on the constitutionality of statutes. LSA-Const. Art. 5, §16(A); see ANR Pipeline Co., 851 So.2d at 1151. Thus, a district court, not an appellate court, is the proper forum wherein these issues should be first addressed. Vallo, 646 So.2d at 864-65; RCS Gaming, Inc. v. State, La. Gaming Control Bd., 97-2317 (La. App. 1 Cir. 11/19/97), 705 So.2d 1124 (per curiam); see also Hill v. Jindal, 14-1757 (La. App. 1 Cir. 6/17/15), 175 So.3d 988, 1001, writ denied, 15-1394 (La. 10/23/15), 179 So.3d 600; City of Denham Springs v. Perkins, 08-1937 (La. App. 1 Cir. 3/27/09), 10 So.3d 311, 326, writ denied, 09-0871 (La. 5/13/09), 8 So.3d 568; Riggins v. Kaylo, 05-1900 (La. App. 1 Cir. 9/15/06), 943 So.2d 1154, 1156.
When the interest of justice requires, appellate courts frequently remand cases to the district court for the purpose of pleading the unconstitutionality of a statute. See Vallo, 646 So.2d at 866; Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 547 (1971); Collins v. Division of Foster Care, Jefferson Parish, Family Div., 377 So.2d 1266, 1268 (La. App. 3 Cir. 1979). Such a remand is not possible here, because the forum from which this appeal comes is not a district court, but the EAB, an administrative agency that cannot decide the constitutional issue. Thus, because the basis of Judge Jones's challenge to the EAB's decision is constitutional, he must first assert his claim in the district court, and the issue is not in the proper posture for this court's review. See Riggins, 943 So.2d at 1156; see also AAA Safety, Inc. v. Dept. of Public Safety and Corrections, 13-2171 (La. App. 1 Cir. 7/11/14), 146 So.3d 709, 715 n.2; Huber v. Midkiff, 02-0664 (La. 2/7/03), 838 So.2d 771, 777; Vallo, 646 So.2d at 865; City of Denham Springs 10 So.3d at 327; In re Medical Review Panel of Harris, 97-1970 (La. App. 1 Cir. 9/25/98), 725 So.2d 7, 9. Therefore, we dismiss this appeal from the EAB's decision.
CONCLUSION
For the foregoing reasons, this appeal is dismissed. Costs of the appeal are assessed to Charles R. Jones.
APPEAL DISMISSED.