Opinion
NO. 95-K-0061
July 2, 1996 Rehearing Denied September 3, 1996
The NCAA determined the plaintiff was ineligible to play college football because of the NCAA's five year rule. Plaintiff filed a complaint in the United States District Court for the Western District of Louisiana that was dismissed based upon lack of subject matter jurisdiction. After the federal court's dismissal, plaintiff filed a Petition for Injunctive Relief and Damages in the Fifteenth Judicial District. A preliminary injunction was issued by the Fifteenth Judicial District on August 22, 1996. The Louisiana Third Circuit Court of Appeal upheld the issuance of the preliminary injunction. Defendant applied for supervisory and/or remedial writs in this court.
It is well settled in the law that the NCAA is a private association and not a state actor. National Collegiate Athletic Association v. Tarkanian, 109 S.Ct. 454 (1988). Courts should not interfere with the internal affairs of a private association except in cases when the affairs and proceedings have not been conducted fairly and honestly, or in the cases of fraud, lack of jurisdiction, the invasion of property or pecuniary rights, or when the action complained of is capricious, arbitrary, or unjustly discriminatory. Louisiana State Board of Education v. National Collegiate Athletic Association, 273 So.2d 912 (La.App. 3rd Cir. 1973); see also, English v. National Collegiate Association, 439 So.2d 1218 (La.App. 4th Cir. 1983), writ denied, 441 So.2d 747 (La. 1983).
Plaintiff has failed to show that the NCAA acted in an arbitrary, capricious, unfair, or discriminatory manner in his case.
Accordingly, the preliminary injunction issued by the trial court is vacated.
I concur in the denial of rehearing in this case. This Court's opinion on original hearing suggests that there is simply no merit to an argument that successive trials for the same offense are prohibited. With that passage I disagree. I believe, contrary to the expression of my brother, Justice Lemmon, in his concurrence to this rehearing denial, that punishment for each of these two offenses would be barred under the Blockburger test and the same evidence test, but for Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678 (1983), in which the United States Supreme Court held cumulative punishments for the same offense permissible if accomplished in a single trial. In the single trial context, the Double Jeopardy Clause serves only to constrain the sentencing court to punishing according to legislative intent.Id. at 366, 103 S.Ct. at 678. In the words of the Hunter Court:
The opinion states:
While an argument may be made such that the principles of double jeopardy may prohibit successive trials for second degree murder and second degree feticide, or even manslaughter and second degree feticide if the "same evidence" is used to convict a defendant of murder or manslaughter for the death of the mother and then for the termination of the unborn fetus, such argument is meritless.
[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen [v. United States, 445 U.S. 684, 100 S.Ct. 1432 (1980)] is not a constitutional rule requiring courts to negate clearly expressed legislative intent. . . . Legislatures, not courts, prescribe the scope of punishments.
Hunter, 459 U.S. at 368, 103 S.Ct. at 679.
There is not question that, just as with felony murder and the particular underlying felony in a given case, the crimes of second degree feticide and manslaughter are the "same": conviction for second degree feticide, based on the killing of the fetus during the manslaughter of the mother, cannot be had without proving all of the elements of the underlying felony of manslaughter, just as, for example, a felony-murder conviction for killing during a rape cannot be had without proving all the elements of the rape. See Whalen, 445 U.S. at 694, 100 S.Ct. at 1439. When two offenses are the "same" under either the Blockburger test or the "same evidence" test, separate prosecution of each is jeopardy barred. That is the very heart of double jeopardy protection. However, if both offenses are prosecuted in a single trial, the two tests serve only as a first step in the jeopardy inquiry, by raising a rebuttable presumption against cumulative punishment. The second step fashioned in Whalen, is determining whether a "clear indication of contrary legislative intent [to cumulatively punish]" exists to rebut that presumption. Id. at 691-92, 100 S.Ct. at 1437-38; see Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2526 (1989). As indicated in this Court's opinion on original hearing, such a contrary intent was evident here. The Louisiana legislature clearly intended to punish the nonconsensual, involuntary termination of a pregnancy, whether done intentionally, unintentionally, or negligently, in a addition to any other criminal penalties which may be assessed with respect to harm done the mother, and not to combine those separate and distinct interests into a single offense punishable by a sentence which, as in this case, may be less than the punishment provided for the crime against the mother alone. Accordingly, the defendant's conviction of and cumulated sentences for both second degree feticide and the manslaughter of the mother, properly accomplished in a single proceeding, were not jeopardy barred.