Summary
In State v. Foster, 02-2918 (La. 10/3/03), 858 So.2d 1281 (per curiam), the Louisiana Supreme Court was faced with the issue of whether a trial court had the authority to order the recordation of the testimony before the grand jury.
Summary of this case from State v. PetersonOpinion
No. 02-OK-2918
October 3, 2003.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF WEST BATON ROUGE
Richard P. Ieyoub, Attorney General, Richard J. Ward, Jr., District Attorney, Martin K. Maley, Assistant District Attorney, Ali Zito Shields, Assistant District Attorney, Counsel for Applicant.
Thomas J. Thompson; Counsel for Respondent.
Ellis Paul Adams, Jr.; Robert S. Glass; Counsel for Amicus Curiae.
We granted this writ application to review the issue of whether the trial court had authority to order the recordation of the testimony before the grand jury in the State's case against Deborah Foster. Our review of the record shows the defendant pleaded guilty on August 12, 2002, to an offense charged by bill of information. Defendant was sentenced that same day. Therefore that issue has now been rendered moot.
Defense counsel attempts to raise the broader issue of whether the trial court's order that "the testimony of the witnesses [is to be] recorded in all the grand jury proceedings from this day forward in this parish" is a valid order. This order, however questionable, is not properly before us. The motion for this ruling was raised improperly in the State's case against Deborah Foster. This issue was neither raised nor urged before the appellate court. There was only a casual mention of this order in defendant's brief with this court. It would be improper for this court to issue what would amount to an advisory opinion in this context regarding an issue that is not properly before us.
Accordingly, we recall the writ as improvidently granted and deny the application as moot.
I dissent from the recall of the writ and the writ denial. In my view, the trial court's verbal order regarding the recordation of grand jury testimony in all cases is before us and is not moot. The United States Supreme Court has recognized certain exceptions to the mootness doctrine which this Court has always considered when resolving issues of justiciability. Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186. One of these exceptions exists if and when there is a significant issue that is "capable of repetition yet evading review." Richmond Newspapers, Inc v. Virginia, 448 U.S. 555, 567-569, 100 S.Ct. 2814, 2822-23 (1980). Although the defendant in this case pled guilty, thus ending the controversy in her case, the discretion that a trial judge has in ordering grand jury proceedings to be recorded is an issue that may consistently evade our review. Thus, it is clear that the action of the trial court should not be ignored on the basis of mootness, but rather should be resolved, as this issue is now properly before us. In my view the Trial Court does not have the discretion to order the recordation of testimony before the grand jury in any case, much less in all cases, absent a showing that such recordation is necessary under the circumstances presented.