Carroll John Landry, III VS Baton Rouge Police Department

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2289 CARROLL JOHN LANDRY III VERSUS BATON ROUGE POLICE DEPARTMENT Judgment Rendered May 8 Appealed from 2009 the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Docket Number C561339 Honorable R Michael Caldwell Floyd J Falcon Jr Charles L Dirks III Baton Rouge Judge Presiding Counsel for Plaintiff Appellant Carroll John Landry III LA Joseph N Lotwick Baton Rouge LA BEFORE CARTER C J Counsel for Defendant Baton Rouge Police Appellee Department WHIPPLE AND DOWNING JJ WHIPPLE J This is appeal by plaintiff an from of the district judgment a court affirming the decision of the Municipal Fire and Police Civil Service Board which had upheld reasons For the day suspension of plaintiff following affirm we one a FACTS AND PROCEDURAL HISTORY On January 2007 plaintiff Officer Carroll John employee serving with permanent classified Baton 12 status as an Rouge Police Department brought his police vehicle When repairs Officer Landry left the vehicle a officer with the the to city lot for lot city the at III Landry he inadvertently left his Department issued shotgun Department issued laptop computer and a bag containing ammunition in the trunk of the vehicle When city lot employees discovered and reported the items an investigation Landry acknowledged was to weapon and other During the investigation Officer conducted Chief Jeff LeDuff that he had inadvertently left his shotgun in the trunk of his unit when he dropped the unit off at the city lot I C lor repaIrs Thereafter Landry that he Manual the personal equipment repairs considering taking official disciplinary action against was Disciplinary Code Section governing 1 June 5 2007 Chief LeDuff advised Officer Landry for the violation of the Department Officer 138 by letter dated Officer he was on from vehicles delivered to that at the time he at the lot the baby city had lot with the the city brought his an accident baby on 132 and weapons and the removal of medical leave for the birth of his first child his wife followed him to the paperwork Policies and Procedures and General Order Nos XII carrying and storage of Landry explained s lot for repairs vehicle to the On the and while he city In the lot for in day question taking care of was herself which also leaked in the truck According to Officer Landry in his haste to attend to his wife and baby Officer Landry left his shotgun computer and some personal magazines in the trunk ofhis unit 2 Landry letter Officer further notified of the time and date of his pre was disciplinary hearing After the pre June 12 2007 that he Landry by letter dated form of a one day suspension due and Departmental policies action disciplinary Chief LeDuff informed Officer disciplinary hearing in the imposing discipline Officer to Officer procedures Landry s of violation Landry appealed the Fire and Police Civil Service Board Municipal the to was the Board hearing before the Board Officer Landry again acknowledged At the Departmental policy that he had violated weapon and laptop in his unit but asked the Chief to consider the in the circumstances determining whether hearing noting that LSA that investigation required police officer was to be violated in the instant Board to RS suspension reprimand caution or or at procedural objection a was within not sixty days acting in a provision good minimum reduce the At the close of the at the investigation of Thus counsel for Officer case action disciplinary internal administrative completed find that the Chief dismiss the a of totality regarding police officers under 40 2531 an take to raised Additionally counsel for Officer Landry his procedure by leaving and hearing which a was Landry asked the faith and suspension to the Board voted to a either letter of to uphold the Chief s decision Officer court noting Landry providing compliance 40 2531 is an required that the Board appealed s decision to that the 2007 amendments to LSA R S 40 2531 in subsection C without then discipline taken against a with the minimum standards set forth absolute an that any nullity Prior to the district part added police officer in LSA R S the 2007 amendments the statute investigation be completed in sixty days but provided 3 no penalty for failure to LSA R S 40 2531 should be Thus instant case leading to his required by one before error provided and thus nature concluded that the court remedy where a could be From this existed none applied prospectively upholding Officer judgment that the Board and the district concluding that the amendment to LSA in as disciplinary action taken against the district suspension of Officer Landry appeals contending the completed within sixty days Thus the district court affirmed the decision of the Board only the which substantive in were to nullity matter question not the 7 absolute hearing the amendments in was 40 2531 B an apply Landry averred because the investigation day suspension him should be declared Landry argued that the amendments to retroactive effect and should given Officer LSA R S After Officer comply Landry committed court legal R S 40 2531 does not have retroactive effect BURDEN OF PROOF AND STANDARD OF REVIEW Matters departments Law 15 1 involving are LSA R S 2 classified governed by 33 2471 the et seq employees of and by LSA Const 2Louisiana Revised Statutes 33 2471 2508 Municipalities 33 2591 Article XIV civil classified 1 15 of the 1921 Constitution 9 1974 Art apply to McGehee X as statutes LSA RS 33 2591 9 are in the section entitled Moreover Any Part II Fire Pursuant Article 10 9 provisions 18 of the 1974 of Article XIV 9 See LSA RS 33 2591 LSA Const 1921 Art 9 18 LSA Const 1921 18 this court has held that the Art XIV provisions 9 1 15 and LSA Const of LSA RS 33 2471 well City Parish ofEast Baton Rouge 2000 1058 La App 1st Cir 9 12 01 809 So 2d 258 261 n a population 6 4 between 250 000 and 500 000 2508 as municipalities having v 18 S S 15 1 ofthe 1921 Louisiana Constitution governs the police services in municipalities having a 1 15 and LSA Const 1974 Art X Citing X XIV between 13 000 and 250 000 Louisiana Constitution retained and continued in force the 9 Art Art service of the fire and between 250 000 and 500 000 population XIV 1921 in the classified service who feels that he has been and Police Civil Service Law for to LSA R S police Municipal Fire and Police Civil Service See LSA R S 33 2591 and LSA Const 1974 regular employee fire and municipal or subjected to may demand a discharged cause any corrective hearing and an or action without disciplinary investigation by the Board to just determine LSA R S 33 250l A the reasonableness of the action The Board may if the evidence is conclusive affirm the action of the If it finds that the action appointing authority for the cause reemployment of such The to a him employee may appeal immediate 33 2501 E 1 The district s decision 3 2 reinstatement any decision of the Board that is court and its review of the Board manner finding of whether the Board LSA R S the good faith taken in or LSA R S 33 2501 C person LSA R S 33 250l E summary order shall Board not was Moore was made shall hear the s good faith for in La in matter action is limited Ware 2001 3341 v prejudicial to a cause 2 25 03 839 So 2d 940 945 If based cannot be on good disturbed on appointing authority prejudice or capricious and appellate statutory judicial review acted arbitrarily political expediency means cause a decision of the Board Good faith does or Moore capriciously 839 So 2d not or at as 945 courts should accord deference must not overturn Moore 839 So to a occur a if the result of Arbitrary the lack of rational basis for the action taken factual conclusions and erroneous faith and or The district civil service board them unless they are s manifestly at 946 2d DISCUSSION As stated above the only issue raised by Officer Landry herein whether the 2007 amendments to LSA R S 40 2531 apply retroactively is to nullify the disciplinary action taken against him where the investigation into the incident was not completed within sixty days 5 Louisiana Revised Statute 40 2531 that shall to apply to the investigations 7 LSA R S 40 2531 B shall be provision In within completed amendments for LSA R S to non Marks 1129 06 the forth the minimum standards of law enforcement officers investigation sixty days 3 a New So Orleans statute 2d 1028 Police prior the 2007 to contained no penalty 4 2006 0575 Department the Louisiana 1032 1036 Pursuant law enforcement officer However the 40 2531 of compliance with the sixty day rule v 943 sets La Supreme Court considered the issue of whether under the pre amendment version of LSA R S 40 2531 the failure to by failure to complete dismissal of the no to investigation the within sixty days required for non compliance the Supreme Court held that the comply with the sixty day time period did dismissal of a 3Prior to summary charges against an officer Noting that the statute contained penalty provision failure comply with the statutory minimum standards not require summary disciplinary action Rather the Court concluded that failure amendment in 2007 LSA RS 40 2531 B Whenever a law enforcement officer is under minimum standards shall 7 Except as 7 provided investigation the as to follows following apply otherwise provided in this Paragraph each investigation of a law enforcement officer which is conducted under the provisions ofthis Chapter shall be completed within sixty days However in each municipality which is subject to a Municipal Fire and Police Civil Service law the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within complete the investigation The board shall set the matter for hearing and shall provide notice of the hearing to the officer who is under investigation The officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension If the board finds that the municipal department has shown cause for the good granting of an extension of time within which to complete the investigation the board shall grant an extension of up to sixty days Nothing contained in this paragraph shall be construed to prohibit the law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days Further nothing in this Paragraph shall limit any investigation of alleged criminal activity which to 4The when the prior to the 2007 amendments investigation was deemed complete statute 6 also did not specifically set forth comply with be imposed the or sixty day time period the type of demonstrated due The to the following the year chief of police against pre subsection to language B a The 7 the Legislature shall initiate Acts 2007 Additionally by complaint subsection C to LSA R S 40 2531 No providing investigation 91 also added the investigation determination of or a that the complaint an as following investigation of a unfounded 258 is made shall be considered upon notice to the law enforcement officer under disciplinary hearing an by amended language providing formal and written Act No law enforcement officer a complete representative days of the date that was 40 2531 amended LSA R S 40 2531 to add his authorized or within fourteen Legislature In Acts 2007 No 91 R S the officer to 943 So 2d at 1036 1037 delay Marks 7 of LSA B impact whether discipline should discipline imposed if prejudice Acts 2007 Nos 91 and 258 subsection may the or unsustained Legislature added follows discipline demotion dismissal or adverse action of any sort taken against a law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section Any discipline demotion dismissal or adverse action of any sort whatsoever taken against a law enforcement officer without the complete compliance with foregoing minimum standards is an absolute nullity There shall be C Emphasis no The effective date of these amendments added was August 15 2007 Officer obligations Landry asserts upon the Baton identified when the department failed to meet Thus place any was deemed completed new and described the law enforcement officer in the event the to a not Rouge Police Department but rather merely investigation remedy available 40 2531 that the amendments did the police obligations already imposed by LSA he contends that these amendments should be 7 RS applied the retroactively thereby nullifying they are procedural provided sixty investigation period can be penalty will focus our for non analysis whether Act 258 on within constitutional confines retroactive effect Louisiana Revised Statute 1 2 5 to 1 2 has been construed However LSA R S LSA C C art 2d 809 retroactive 6 Marine Insurance St Paul Fire of application jurisprudentially grafted one providing In the absence of enactments legislative as expressly rule the follows contrary legislative expression substantive apply prospectively only Procedural and interpretive apply both prospectively and retroactively unless there legislative expression to the contrary In Marine Insurance prospectively only fold inquiry or application Keith 694 So a Company laws newly court must enacted provision is U S 2d 180 Fidelity 183 be to 6 art a applied requires a determine whether the amendment to legislative intent regarding retroactive v is 609 So 2d at 816 may also be retroactive LSA C C First the the statute expresses 5 9 97 whether determining against exceptions laws St Paul Fire so Smith 609 v general and that extensive with co Company Article 6 codifies the 1992 La 816 as gIve its provides Section of the Revised Statutes is retroactive unless it is stated two was compliance with the is free legislature enactments So a him because against applied retroactively The n o we for taken Because Acts 2007 No 258 remedial in nature or the amendment that discipline Guaranty Company Second if no such intent is or prospective 96 2075 La expressed the 5Louisiana Constitution Article I section 23 prohibits ex post facto laws and laws impairing obligations of contracts Also no law can be retroactively applied so as to divest a party of a vested right as this would violate the due process clause of the state and federal constitutions These constitutional issues however arise only when retroactive effect is given to a new law S1 Paul Fire Marine Insurance Company v Smith 609 So 2d 809 816 n 11 La 1992 8 enactment must be classified Keith 694 So 2d does would so then in spite contractual impair so of Automobile Insurance In the instant interpretive or case provided Noyes 872 So 2d Procedural at of the laws Act 258 does for an Keith rights 6 State Farm Mutual 1 App La expressly provide st Cir for retroactive declared the Act Therefore procedural to this be court must 6 interpretive or original and duties 694 So 2d or statute statute not enforcing the form of the to not create meaning that the interpretive rights the contrary the law 2002 1876 method for a and duties the other hand do the to If it rights effective date that would be indicative of prescribe laws It is the not substantive as new enactment if disturb vested legislature expressly establish on applied retroactively See 1138 laws rules to interpretive Noyes v existing substantive right and relate operation or of the amendments the enactment or its intent 1138 has the application retroactive classify nor be not obligations procedural Company 872 So 2d 1133 application interpretive or expressed has legislative pronouncements is substantive rather than 2 23 04 procedural legislature whether the even law retroactive effect the law may a doing substantive at 183 Furthermore give as at 183 had the rules but proceeding or the ones from the time interpretive Interpretive merely establish the one Marine Insurance St Paul Fire previously Substantive laws either change existing new a of its initial that establishes Company 609 So Landry argues in part that the amendments were remedial and thus should be applied retroactively While the jurisprudence had also recognized a fourth category remedial laws the legislature intentionally left this category out of LSA C C art 6 because of the multiplicity of meanings it had been given A remedial law may be procedural interpretive or substantive LSA C C art 6 Official 16 Comment d St Paul Fire Marine Insurance Company 609 So 2d at 817 n As noted above Officer 9 When 2d at 817 or explaining statute an the law may be may be pre not regarded as a subsequent interpretive existing law statute and the not clarifying interpretive but change Marine Insurance St Paul Fire 609 So 2d at 817 As noted Court by the Supreme changing existing law is the suggested and substantive interpretive legislation clarifying or clear retroactive effect because it does given merely clarifies Company existing law is an obscure distinction between legislation amending There is one bright no change existing standards and interpretive between substantive laws which change existing standards by redefining and returning laws which ostensible original meaning 609 So 2d line St Paul Fire Marine Insurance to their Company at 819 However the to acts legislative Bourgeois v statutory interpretation and the construction is a matter of law and A P Green Industries Inc Noyes 872 So 2d 1251 1260 with approval at Justice Lemmon in his majority opinion in Bourgeois rests with the 2000 1528 In 1139 be given judicial branch La 4 3 01 Noyes this to court assignment of additional wherein Justice Lemmon stated 783 So 2d has quoted reasons as to the follows interpretive legislation occurs when the Legislature upon realizing that a previously enacted law contains an ambiguity or an error amends the prior law to correct the ambiguity or error before the law has been judicially interpreted However after the judicial branch performs its constitutional function of interpreting a law and the Legislature disagrees with that True interpretation a new legislative enactment is a substantive change in the law and is not an interpretive law because the original law as interpreted by the judicial branch no longer applies Bourgeois Noyes 783 So 2d at 1261 Lemmon 872 So 2d at 1139 10 J assigning additional reasons prior As stated above 40 2531 did not contain a for non officer dismissal of require not demonstrated due was added Officer to Contrary Acts 2007 No by prescribe method for a to enforcing to declared absolute taken See applies additional s the reasons Accordingly we interpretive See Noyes Until 40 2531 an compliance was the the officer had nullity imposed against at an which absolute 1261 conclude provides with 40 2531 the exist the that any minimum nullity is that the in Marks Lemmon that Act no adding subsection C remedy of nullity for discipline the minimum standards J 258 no longer assigning was not set to LSA R S taken without forth in LSA R S 40 2531 nor penalty of absolute nullity of the disciplinary action imposed against department Thus distinct right 872 So 2d at 1139 1140 the 2007 amendment to of previously of LSA R S 2d merely 40 2531 set forth in LSA R S not So 783 as discipline taken without complete sixty day rule is Bourgeois 40 253l C not the 1037 substantive previously existing did to at 1036 because it did complete compliance interpretation the 2007 prejudice procedural have any comply without including Court to penalty no to LSA R S the effect of Acts 2007 No 258 Moreover Supreme action unless nullity and the penalty department for its failure standards to a prior assertions s is not 258 contained statute Marks 943 So 2d delay minimum standards the compliance discipline the compliance with the comply with the sixty day time period disciplinary Landry Instead the right of an officer an a to non Supreme Court the compliance amendments held that the failure did that the Noting sixty day investigation rule provision for penalty provision LSA R S at issue the 2007 amendment to change in the the amendment was substantive in that it represents rights and obligations of the parties 11 a Pursuant to LSA C C art 6 and LSA R S 1 2 such do substantive change in the law and the Board and the district applied retroactively declining to a court were cannot be correct in so CONCLUSION For the above and the district plaintiff court is foregoing Landry the June 10 2008 Costs of this affirmed Carroll John reasons III AFFIRMED 12 appeal are judgment of assessed against

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