In Re Matter Under Investigation
In re A MATTER UNDER INVESTIGATION.
In re A Matter Under Investigation.
Jane and John Does
v.
Charles C. Foti, Attorney General for the State of Louisiana, Eddie Jordan, District Attorney for the Parish of Orleans, Frank Minyard, Coroner for the Parish of Orleans, Rose Agnes Savoie, Cable News Network, Inc., The Times Picayune, LLC, et al.
Supreme Court of Louisiana.
*974 Fishman, Haygood, Phelps, Walmsley, Willis & Swanson, James Richard Swanson, *975 Loretta Gallaher Mince, Lance C. McCardle, New Orleans, for Applicant in 2007-KK-1853 and 2008-CC-1066.
Charles C. Foti, Jr., Attorney General, Carles H. Braud, Jr., Arthur Falls Schafer, Frederick Albert Duhy, Jr., Virginia Gerace Benoist, Burton Paul Guidry, Dana K. Jones, Emalie Anne Boyce, Assistant Attorneys General; Robert Louis Freeman, Jr., District Attorney, Michael Gerard Morales, Assistant District Attorney; Liskow & Lewis, Brian Anthony Jackson, New Orleans, Michael David Rubenstein; Gerger & Clarke, Shaun Gerard Clarke; Blue Williams, Kurt Stephen Blankenship, Mandeville; Cruel, Castaing & Lilly, Edward Joseph Castaing, Jr., New Orleans; Hailey, McNamara, Hall, Larmann & Papale, Richard Terrell Simmons, Jr., Metairie; John Edward Di Giulio; for Respondent in 2007-KK-1853.
Charles C. Foti, Jr., Attorney General, Charles H. Braud, Jr., Arthur Falls Schafer, Frederick Albert Duhy, Jr., Virginia Gerace Benoist, Burton Paul Guidry, Dana K. Jones, Emalie Anne Boyce, Assistant Attorneys General; for Applicant in 2007-KK-1870.
Robert Louis Freeman, Jr., District Attorney, Michael Gerard Morales, Assistant District Attorney; Fishman, Haygood, Phelps, Walmsley, Willis & Swanson, James Richard Swanson, Loretta Gallaher Mince, Lance C. McCardle, New Orleans; Liskow & Lewis, Brian Anthony Jackson, Michael David Rubenstein; Gerger & Clarke, Shaun Gerard Clarke, Blue Williams, Kurt Stephen Blankenship, Mandeville; Cruel, Castaing & Lilly, Edward Joseph Castaing, Jr., New Orleans; Hailey, McNamara, Hall, Larmann & Papale, Richard Terrell Simmons, Jr., Metairie; John Edward Di Giulio, Baton Rouge, for Respondent in 2007-KK-1870.
Law Offices of James E. Boren, James Edgar Boren, Baton Rouge; Bradley, Murchison, Kelly & Shea, C. William Bradley, Jr., Bradley Russell Belsome; Capitelli & Wicker, Ralph Capitelli, New Orleans; Crull, Castaing & Lilly, Edward Joseph Castaing, Jr., New Orleans; Chehardy, Sherman, Ellis, Metairie, Murray, Recile, Griffith, Stakelum & Hayes, Michael H. Ellis, Metairie; Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Pauline Fransen Hardin, Virginia W. Gundlach, Stephen J. Haedicke, New Orleans; Shows, Cali, Berthelot & Walsh, Baton Rouge, Edmond Wade Shows; King, Krebs & Jurgens, Lindsay Alexis Larson, III, New Orleans; Law Offices of Michael J. Samanie, Houma, Stephen Scott Stipelcovich, Michael J. Samanie, Houma; Busch & Myers, Mark Christopher Carver, New Orleans; Stanley, Reuter, Ross, Thornton, & Alford, Vicki Ann Elmer, New Orleans; Flanagan Partners, Thomas More Flanagan, New Orleans; Preston Law Firm, Paul Gregory Preston, New Orleans; Sedgwick, Detert, Moran & Arnold, Wayne B. Mason; Clayton & Fruge, Antonio Marcell Clayton; Hailey, McNamara, Hall, Larmann & Papale, Richard Terrell Simmons, Jr., Metairie; Liskow & Lewis, Brian Anthony Jackson, New Orleans; Gerger & Clarke, Shaun Gerard Clarke; Garrison, Yount, Forte & Mulcahy, Scott Parker Yount; Gulf Law Group, Pamela Joy Lormand; Robert C. Jenkins, Jr. & Associates, Robert Charles Jenkins, Jr.; Stephen David London; Clarence Roby, Jr., New Orleans; David Frederick Craig, Jr.; John Edward Di Giulio, Baton Rouge; Ralph Shipley Whalen, Jr.; Bruce Gerard Whittaker; Charles C. Foti, Jr., Attorney General, Charles H. Braud, Jr., Mary Ellen Hunley, Richard Lee McGimsey, Dana K. Jones, Emalie Anne Boyce, Assistant Attorneys General; Robert Lewis Freeman, Jr., District Attorney; Meadows, Collier, Reed, Cousins & Blau, Charles W. Blau, Pro Hac Vice, for Respondent in 2008-CC-1066.
*976 KIMBALL, Chief Justice.[*]
The matters of 2007-KK-1853 and 2007-KK-1870 involve the issue of whether the Orleans Parish Criminal District Court properly ordered the return of documents and copies thereof that were produced pursuant to a subpoena duces tecum pursuant to
The matter of 2008-CC-1066 involves the issue of whether the Attorney General's investigative file into the circumstances surrounding several deaths at Tenet Health System Memorial Health Center following Hurricane Katrina is required to be disclosed at this time under the Public Records Act. We find that
Facts and Procedural History
Beginning in September 2005, after Hurricane Katrina struck the Louisiana coast, then-Louisiana Attorney General ("AG") Charles Foti initiated several investigations into the conditions surrounding several deaths that occurred at hurricane-impacted healthcare facilities. During this period and pursuant to the requirements of law, Life Care Hospitals of New Orleans, LLC ("LifeCare") self-reported the deaths of thirty-four men and women who died at Tenet Health System Memorial Medical Center, Inc. ("Tenet-Memorial") in the immediate aftermath of Hurricane Katrina.[1] AG Foti thereafter began an investigation into the Tenet-Memorial deaths.
During the course of his investigation, AG Foti served La.C.Cr.P. art. 66 subpoenas and subpoenas duces tecum on numerous witnesses who were working at Memorial in the days following Hurricane Katrina, their corporate employers and various others. The AG also seized other documents and evidence through search warrants, and some documents were provided voluntarily by LifeCare and Tenet-Memorial. In sum, the AG's investigative file ultimately contained several thousand pages of documents, including transcripts of witness interviews, documents obtained from Tenet-Memorial and LifeCare, other evidentiary records, information produced during the investigation, summary reports prepared by the AG, correspondence among the investigatory personnel, subpoenas and search warrants, expert reports, *977 toxicology reports, police logs, photographs, and copies of press coverage. The AG's investigation continued into 2006, and ultimately culminated in the arrest of three medical professionals on July 17, 2006.
Following the arrests, AG Foti gave a complete copy of his investigative file to the Orleans Parish District Attorney's Office ("DA"). The DA subsequently impaneled a special grand jury to consider the matter.[2] Two of the arrested healthcare professionals were then granted immunity in exchange for their testimony. On July 24, 2007, the special grand jury returned a "no true bill," thereby refusing to indict the remaining healthcare professional. The DA then returned the copy of the AG's investigative file to the AG.
Following the occurrences outlined above, two proceedings concerning the AG's investigative file were initiated.
The Orleans Parish Criminal District Court Action[3]
On August 6, 2007, Tenet-Memorial filed a motion in Orleans Parish Criminal District Court for return of seized property pursuant to
IT IS ORDERED that Hon. Charles C. Foti, Attorney General of the State of Louisiana and Hon. Eddie Jordan, District Attorney for the Parish of Orleans return the originals and all copies of materials produced as a result of a subpoena signed by this court, to the entities or organizations that produced material to the Attorney General's office or the District Attorney's office in this matter.
*978 IT IS FURTHER ORDERED that the Attorney General and the District Attorney shall have 30 days to take writs on this order. That period ends on September 15, 2007. Unless a stay of this order is granted by an Appellate Court, the Attorney General and the District Attorney shall return the property to any entity or organization on or before September 16, 2007. In the interim, the Attorney General, District Attorney and any other governmental entity of the State of Louisiana in possession of such material shall not release any original documents, records, other property, or copies thereof that were produced as a result of a subpoena signed by this court in this matter.
CNN sought supervisory writs and a stay from the court of appeal on September 7, 2007. That same day, the Louisiana Court of Appeal, Fourth Circuit, denied both the writ and the stay, finding: "Relator has no standing to seek supervisory review of the trial court's ruling." On September 12, 2007, the AG filed his own application seeking review by the court of appeal. Although the court found that the AG had the requisite standing, it denied the AG's writ on the following day.
Thereafter, both CNN and the AG sought writs of certiorari from this court. We stayed the order of the trial court, granted certiorari, and consolidated the matters. In re: A Matter Under Investigation, 07-1853, 07-1870 (La.6/20/08),
The 19th Judicial District Court for the Parish of East Baton Rouge Action
Following the return of the "no true bill" by the grand jury, CNN and the Times-Picayune, LLC ("Times-Picayune") joined by others, submitted numerous public records requests to AG Foti requesting production of the investigative file. In response, the AG filed suit in the 19th Judicial District Court for the Parish of East Baton Rouge, seeking a declaratory judgment clarifying what portions, if any, of his investigative file were subject to release under the Louisiana Public Records Act. On the same day, several unidentified individuals alleging they are healthcare professionals who worked at Memorial Medical Center during and after Hurricane Katrina and appearing under the names of John and Jane Doe also filed a petition for declaratory judgment in the 19th Judicial District Court for the Parish of East Baton Rouge. These petitioners sought a declaration that the investigative files are not subject to disclosure under the Public Records Act. The Does named as defendants the Attorney General, the District Attorney of Orleans Parish, the Orleans Parish Coroner, Rose Agnes Savoie, CNN and the Times-Picayune, and "all other persons or entities who have made requests under the Louisiana Public Records Act." In response, CNN and the Times-Picayune filed a cross-claim and motion for writ of mandamus and preliminary injunction seeking to compel the release of the investigative file. Subsequently, several interested parties were allowed to intervene in the suit. After the filing of the cross-claim, all parties agreed to proceed only in the Does' case.
Several days after the Orleans Parish Criminal District Court rendered its order, the judge in the 19th Judicial District Court commenced hearings in the Does' action. The AG filed under seal a complete copy of his investigative file, including an index, in the trial court.[4] After the hearings were completed, the trial court rendered judgment on September 19, 2007, finding that the majority of the investigative file was a public record, but *979 also identifying specific portions that were not subject to public release.[5] The trial court denied the motion for writ of mandamus and preliminary injunction. Finally, the trial court stayed its order to allow the litigants to seek appellate review.
The Does and various intervenors, including LifeCare, thereafter applied to the Court of Appeal, First Circuit, for supervisory writs. On April 18, 2008, in a 4-3 decision, a seven-judge panel of the court of appeal granted the writ applications in part and denied them in part, giving identical reasons for each application. The court of appeal denied the writs as to the trial court's findings of jurisdiction and standing, and as to its order denying the motions for writ of mandamus and preliminary injunction. It granted the writs with respect to all other provisions of the trial court's order and reversed. In reversing the remaining orders of the trial court, the court of appeal found
*980 CNN and the Times-Picayune subsequently applied to this court for writs of certiorari, which we granted on June 20, 2008. This matter was consolidated with the writs arising out of the Orleans Parish Criminal District Court action. Does v. Foti, 08-1066 (La.6/20/08),
Discussion
The Orleans Parish Criminal District Court Action (07-KK-1853 and 07-KK-1870)
In brief, both CNN and the AG argue that any documents obtained from Tenet-Memorial plainly fall within the definition of a public record under the Public Records Act, and, therefore, the AG has a legal duty to maintain copies of all such documents in his file. They further argue this duty overcomes Tenet-Memorial's right to have said copies returned.[7] CNN and the AG also argue that a motion filed pursuant to
We must first consider whether CNN has standing to intervene in Tenet-Memorial's motion for return of property. Tenet-Memorial asserts that CNN was neither a party to the motion for return of property, nor was it made a subject of the court's order. In addition, Tenet-Memorial notes that
When addressing a litigant's standing, we have found that the "predicate requirement of standing is satisfied if it can be said that the [litigant] has an interest at stake in litigation which can be legally protected." In re: Melancon, 05-1702, p. 9 (La.7/10/06),
In this case,
A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days... from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney's fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
CNN asserts, however, that it has a right, not only to access the public records, but also to ensure that they are not compromised by the Orleans Parish District Court's order mandating the return of certain documents and copies thereof. The intent of CNN's intervention in this case is thus not to inspect the public records, but rather to maintain what it considers to be public records. However, when the facts alleged provide a remedy to someone, but the litigant who seeks relief is not the person in whose favor the law extends the remedy, that litigant is without standing. Melancon, 05-1702 at p. 10,
In addition, when ruling on standing, it is both appropriate and necessary to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Chicago Tribune Co. v. Mauffray, 08-522, pp. 7-8 (La.App. 3 Cir. 11/5/08),
For these reasons, we find that CNN lacked standing to intervene in the Orleans Parish Criminal District Court proceeding, and we hereby dismiss CNN from that portion of this case.
Having determined that CNN lacked standing to intervene in Tenet-Memorial's motion for return of property, we now address whether the Orleans Parish Criminal District Court possessed the requisite jurisdiction to entertain that motion. The AG asserts that a motion for return of property under
The rules of statutory construction provide that when a law is clear and unambiguous and its application will not *983 lead to absurd consequences, it must be applied as written. La. C.C. art. 9. Furthermore, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.
We find nothing within the plain language of
The AG cites three appellate cases in support of his conclusion that a
The Baynes court, also in dicta, made a similar finding, noting in a footnote that "an action for return of property, even if governed in part by criminal statutes, is by nature a civil action." Baynes, 96-0292 at p. 6 n. 2,
We find none of the above-cited cases probative or even helpful in resolving the issues presently before us. Rather, the above-cited cases referenced no governing, applicable authority for their interpretations of
Finally, we note that
When property is seized pursuant to a search warrant, it shall be retained under the direction of the judge. If seized property is not to be used as evidence or is no longer needed as evidence, it shall be disposed of according to law, under the direction of the judge.
La.C.Cr.P. art. 167. The plain language of this article vests the judge presiding over a proceeding with the jurisdiction to order the return of property seized under a search warrant in connection with that proceeding. Because property seized pursuant to a search warrant is almost exclusively done so in connection with criminal proceedings and this provision is found in the Code of Criminal Procedure, we interpret this statute as allowing a criminal court judge to exercise the jurisdiction to order the return of property seized pursuant to a search warrant.
Given our mandate to read laws on the same subject matter in reference to each other under La. C.C. art. 13, and for the reasons set forth above, we find that a motion for return of property filed pursuant to
Having concluded that the Criminal District Court is a proper jurisdiction in which to bring this
As an initial matter, we do not address the status of any original documents, or copies thereof, seized by the AG pursuant to a search warrant. We find that we need not reach this issue given the limited language of the trial court's order. The trial court's order demanded the return of "the originals and all copies of materials produced as a result of a subpoena signed by this court, to the entities or organizations that produced material to the [AG]'s office or the [DA]'s office in this matter." (Emphasis added.) Later in its order, the trial court ordered the AG and the DA "not [to] release any original documents, records, other property, or copies thereof that were produced as a result of a subpoena signed by this court in this matter." (Emphasis added.) Thus, it appears that *985 the trial court's order was specifically limited to a return of the originals and copies of documents produced as a result of a subpoena only, and did not address or order the return of the originals or the copies of documents seized pursuant to a search warrant. Therefore, we need not comment on whether a trial court, under the auspices of
Having disposed of this initial issue, we now turn to whether documents produced pursuant to a subpoena duces tecum, and copies thereof, constitute "property seized" within the meaning of
The primary source of misconception concerning the Fourth Amendment's function lies perhaps in the identification of cases involving so-called `figurative' or 'constructive' search with cases of actual search and seizure. Only in this analogical sense can any question related to search and seizure be thought to arise in situations which, like the present ones, involve only the validity of authorized judicial orders.
The confusion is due in part to the fact that this is the very kind of situation in which the decisions have moved with variant direction, although without actual conflict when all of the facts in each case are taken into account. Notwithstanding this, emphasis and tone at times are highly contrasting, with consequent overtones of doubt and confusion for validity of the statute or its application. The subject matter perhaps too often has been generative of heat rather than light, for the border along which the cases lie is one where government intrudes upon different areas of privacy and the history of such intrusions has brought forth some of the stoutest and most effective instances of resistance to excess of governmental authority.
Oklahoma Press Pub. Co. v. Walling,
Notwithstanding this confusion, the Court plainly concluded that the "short answer" to Fourth Amendment objections regarding subpoenas duces tecum is that documents sought pursuant to a valid subpoena duces tecum, like those sought in the afore-quoted Oklahoma Press case, "present no question of actual search and seizure...." Oklahoma Press,
In distinguishing a valid subpoena duces tecum from a search and seizure, the Court noted that it is not necessary, as in the case of a search warrant, that a specific charge or complaint of violation of the law be pending or that the order be made pursuant to one. Oklahoma Press,
It is this opportunity for objection and judicial intervention, in fact, that differentiates a subpoena duces tecum from a search or seizure. Persons from whom documents are subpoenaed are not required to submit to the subpoena's demand if it is in any way unreasonable or overreaches its authority. Oklahoma Press,
This judicial intervention also alters the necessary burden for receiving a subpoena duces tecum. The probable cause requirement that is literally applicable in the case of search warrants is satisfied by the court's determination that the investigation is authorized, the documents sought are relevant to the inquiry, and the request for production is reasonable. Oklahoma Press,
While this court has yet to directly address the difference between subpoenas duces tecum and search warrants, we have recently spoken on the issue in a tangential manner. In State of Louisiana v. Lee, 05-2098, p. 17 (La.1/16/08),
For these reasons, we find that documents and other things produced pursuant to a subpoena duces tecum are not "property seized" within the meaning of
The 19th Judicial District Court for the Parish of East Baton Rouge Action (08-CC-1066)
As discussed above, this action arose following several public records requests for the AG's investigative file that were submitted after the grand jury returned a "no true bill" in the underlying matter. In the action at issue, CNN and the Times Picayune assert they are entitled to all documents relating to the investigation of the deaths at Tenet-Memorial that occurred in the aftermath of Hurricane Katrina because those records are *989 public records under the Public Records Act. The Does respond that as a matter of law, the investigative file is not subject to disclosure under the Public Records Act because the file pertains to reasonably anticipated criminal litigation that has not been finally adjudicated or otherwise settled and is therefore exempt from the Act by
Article XII, sec. 3 of the Louisiana Constitution provides that "no person shall be denied the right to ... examine public documents, except in cases established by law." The Louisiana Public Records Law is codified at
The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution.La. Const. art. 12 , 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to see. To allow otherwise would be an improper and arbitrary restriction on the public's constitutional rights.
Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, p. 4 (La.7/1/97),
"Public records" are defined in
All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, ... except as otherwise provided in this Chapter or the Constitution of Louisiana.
Thus, under this broad definition, the investigative file at issue is a public record that any person may obtain a copy of unless the Public Records Act or another law specifically provides otherwise.
In this court, the Does, various intervenors, and the AG contend that the Public Records Act contains a specific exemption for the investigative file.
A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, *990 police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, or publicly owned water districts of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled....[13]
This court has recognized the provisions of
The parties disagree as to the applicability of
Whether the investigative file is subject to disclosure implicates the provisions of
Turning to the applicability of the exemption provided by
The provisions of the exemption apply to records, or the information contained therein, pertaining to pending or reasonably anticipated criminal litigation. The investigative file to which public access is sought was compiled and produced for the purpose of bringing and proving criminal charges arising from the circumstances surrounding the deaths following Hurricane Katrina at Tenet-Memorial. Everything in the file can be said to pertain to criminal litigation. Thus, if it can be said that criminal litigation is pending or reasonably anticipated in this case, then the entire file is covered by the exemption and is not required to be disclosed under the Public Records Law at this time.[14]
The issue then becomes whether criminal litigation is pending or reasonably anticipated in this case. All parties agree there is no pending criminal litigation related to the deaths following Hurricane Katrina at Tenet-Memorial. Rather, the issue is whether criminal litigation can be reasonably anticipated. The generally understood meaning of the term reasonably anticipated is reasonably foreseen or contemplated. The term reasonably anticipated does not require a certainty or even a near certainty. Thus, criminal litigation can be said to be reasonably anticipated when it is reasonably foreseen or contemplated. The plain language of the statute does not require a finding that criminal litigation will be pursued or will almost certainly be pursued for the exemption to apply. Rather, the exemption applies if it is reasonably foreseen or contemplated, i.e., if it is reasonably anticipated, that criminal litigation will be brought against some potential criminal defendant who was part of the investigation.
This court has previously established that the determination of whether a particular record falls within the exemption provided by
Thus, the determination of whether criminal litigation is reasonably anticipated within the meaning of
We therefore find that a court's determination of whether criminal litigation is reasonably anticipated pursuant to
In
F. Notwithstanding any other provision of law to the contrary, after a period of ten years has lapsed from the date of death of a person by other than natural causes, and upon approval by the district court having jurisdiction over any criminal prosecution which may result due to the death of such person, any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative *993 files or evidence or potential evidence, or any other record, document, or item relating to said death shall, upon request, provide copies of all such files, records, and documents to immediate family members of the victim and shall provide unlimited access for any and all purposes to all such evidence, potential evidence, and other items to any member of the immediate family and to any person or persons whom any member of the immediate family has designated for such purposes....
Upon our review of this case, we find the record is insufficient to allow us to make a meaningful determination of whether criminal litigation is reasonably anticipated for purposes of
The record in this case is insufficient for us to determine whether criminal litigation is reasonably anticipated under
Decree
For the reasons set forth above, in the matters of 2007-KK-1853 and 2007-KK-1870 we find that CNN lacked standing to intervene in the Orleans Parish Criminal District Court proceeding, and we hereby dismiss CNN from that action. Furthermore, although we find that a
*994 For the reasons set forth above, in the matter of 2008-CC-1066 we find that
2007-KK-1853-REVERSED AND SET ASIDE. CASE REMANDED TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS.
2007-KK-1870-REVERSED AND SET ASIDE. CASE REMANDED TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS.
2008-CC-1066-REVERSED AND SET ASIDE. CASE REMANDED TO THE 19TH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE.
VICTORY, J., concurs in part and dissents in part and assigns reasons.
KNOLL, J., dissents in part in nos. 07-KK-1853 and 1870 and concurs in the result in no 08-CC-1066, and assigns reasons.
WEIMER, J., concurs.
VICTORY, J., concurring in part and dissenting in part.
I agree that the Orleans Parish Criminal District Court has subject matter jurisdiction to entertain Tenet Memorial's motion for return of property under
The fact that this article is found in the statutes governing criminal procedure indicates that it applies to courts exercising criminal jurisdiction. Further, that
Further, I would read this statute in light of La.C.Cr.P. art. 167, which also governs the custody and disposition of seized property, and which provides as follows:
When property is seized pursuant to a search warrant, it shall be retained under the direction of the judge. If seized property is not to be used as evidence or is no longer needed as evidence, it shall be disposed of according to law, under the direction of the judge.
This criminal code provision clearly gives the judge presiding over the criminal case the jurisdiction to order the return of property seized under a search warrant. Because of the unique jurisdictional status of the Orleans Parish Courts, because
However, I question the majority's finding that because the property sought to be returned was obtained by virtue of a subpoena instead of a search warrant, the documents do not constitute "property seized" within the meaning of
This dispute centers only around the copies made by the Attorney General's office. I question whether Tenet-Memorial is the "owner" of the copies for the purposes of
However, also regarding 07-KK-1853 and 07-KK-1870, I dissent from the majority's ruling that CNN lacks standing in this matter. The majority's reasoning rests on the erroneous proposition that the action for the return of property "has no logical nexus to CNN's asserted status, which is that of a party who has been denied the right to inspect or copy a public record." At 982. It is clear that if the documents were returned to Tenet-Memorial prior a determination being made in 08-CC-1066 as to whether they are public records, then CNN would lose its chance to inspect or copy the public records. Surely, that meets the requirement that the litigant "has an interest at stake in [the] litigation which can be legally protected." In re Melancon, 05-1702 (La.7/10/06),
I dissent from the second portion of the majority opinion regarding 08-CC-1066, remanding the matter to the trial court to determine whether criminal litigation can be reasonably anticipated as provided in
Q. All right. And your office has confirmed that further criminal litigation on this matter is not going to be pursued; is that right?
A. Mr. Jordan was quite clear that this case is over.
. . .
Q. Is criminal litigation reasonably anticipated?
. . .
A. The case is over. My boss has said quite clearly, the case is over.
Assistant Attorney General Schafer testified regarding that issue: "It is my understanding that the District Attorney has said that he was not going to go forward in this matter in any way, shape or form and I think my boss has let it be known that this case is over as far at the attorney general's office is concerned."[1] In its final judgment, the trial court found that the documents were public records, subject to certain exceptions. See p. 979, n. 5. The trial court did not find that the documents were excepted from disclosure because criminal prosecution was reasonably anticipated. Upon review, the appellate court did not apply the manifest error standard to this factual ruling, but instead found that the documents at issue in this proceeding are exempted from disclosure under the Act under
I disagree with the majority's finding that a remand is necessary under its newly articulated factors. The cases cited by the majority, Cormier v. In re: Public Records Request of Giulio,
However, instead of affirming the trial court's ruling, the majority remands the case so that the trial court can assess the issue under "objective factors" formulated by the majority. At p. 992. I dissent from the majority's decision to remand this case for the trial court to again decide the issue using these new factors. I would reinstate the judgment of the trial court in all other regards as well.
For the above reasons, I respectfully concur in part in 07-KK-1853 and 07-K1870 to the extent that no documents can be turned over to Tenet-Memorial until the finality of the proceedings in 08-CC-1066 as to whether the documents are public records; I dissent in the ruling in 07-KK-1853 and 07-KK-1870 that CNN lacks standing; and I dissent in the ruling in 08-CC-1066 and would reinstate the judgment of the trial court.
KNOLL, J., dissenting, in part, and concurring, in part.
As to Nos. 07-KK-1853 and 08-KK-1870 involving the Orleans Parish litigation, although I agree with the majority in its determination that CNN lacked standing to intervene in the Orleans Parish Criminal District Court proceedings, I respectfully disagree with its resolution of the question of whether the Orleans Parish Criminal District Court possessed the requisite subject matter jurisdiction to entertain Tenet-Memorial's motion for return of property.
Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La.Code Civ. Proc. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La.Code Civ. Proc. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court *998 which has no jurisdiction over the subject matter of the action or proceeding is void. La.Code Civ. Proc. arts. 3 and 925. Boudreaux v. State, Dept. of Transp. and Development, 01-1329 (La.2/26/02),
Louisiana jurisprudence treats an action for return of property under La.Rev.Stat. 15:41 as a civil action, even if criminal statutes govern it in part. See State ex rel. C.C.,
Even though the majority attempts to rest its disposition on the fact that La.Rev. Stat. 15:41 bears a heading indicative of its inclusion as a matter associated with a criminal proceeding, I find that designation not dispositive of the issue. In State v. Page,
It is clear to me that although a nexus may exist between the initial proceeding in criminal court and the associated ancillary matter, this distinction between civil actions and criminal proceedings as applied in the case sub judice poses a jurisdictional problem. This threshold problem has a twofold basis: (1) the unique division in Orleans Parish between Criminal District Court and Civil District Court; and (2) the fact that in the matter now before us there is no present criminal matter pending in the Orleans Parish Criminal District Court.
Addressing
Under the 1921 Louisiana Constitution the Civil District Court for the Parish of Orleans was vested with `the same exclusive *999 original civil jurisdiction as that of District Courts throughout the State....'La. Const. art. VII , 81 (1921). The original civil jurisdiction of the district courts alluded to in Section 81 was original jurisdiction `in all civil matters.'La. Const. art. VII , 35 (1921). Under that same 1921 Louisiana Constitution the Criminal District Court was vested with `exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors and offenses committed within the parish of Orleans, the jurisdiction of which is not vested by this Constitution in some other court.'La. Const. art. VII , 83 (1921). There was, however, another provision of the 1921 Constitution which authorized the Legislature `by two-thirds vote of all members elected to each house' to change, alter or repeal any or all of the constitutional provisions covering the Criminal District Court for the Parish of Orleans. (FN6)
FN6. Article VII, s 87 of 1921 Constitution provided that: "The Legislature may, after January 1st, 1924, by a two-thirds vote of all members elected to each house, change, alter or repeal any or all of the above provisions covering the criminal courts of the City of New Orleans and parish of Orleans."
For two cases which discuss and apply this provision, See State v. Brady,310 So.2d 593 (La.1975); Sciambra v. Edwards,270 So.2d 167 (La.App. 1st Cir. 1972), writs refused,273 So.2d 41 .
Applying Page and Francois, it is clear to me the Orleans Parish Criminal District Court does not have subject matter jurisdiction to entertain Tenet Memorial's motion brought under La.Rev.Stat. 15:41. Although as recognized in Francois that "the legislature may completely abolish, partially erase or otherwise change the separation between these [Orleans Parish] courts by law," Id.,
As to the petition for declaratory relief filed in the 19th Judicial District Court, No. 08-CC-1066 in this Court, I concur in the result and offer the following reasons.
Initially, I observe the majority opinion fails to address the contention made by the Doe plaintiffs, LifeCare and Dr. Anna Pou that anyone can raise the exemption provided in La.Rev.Stat. 44:3(A)(1). Although I find no merit to this argument,[1] I nonetheless respectfully find that the failure to address this question robs this Court of an opportunity to lay this question to rest.
I also take issue with the majority's conclusion that a resolution of the question regarding the reasonably anticipated criminal litigation exemption precludes the necessity of addressing the question of whether the Louisiana Attorney General waived assertion of this exemption because it was not raised in the trial court. With all due respect to the majority, I find such treatment fails to address and resolve a threshold question which, if resolved in favor of CNN and the Times-Picayune, obviates the necessity of reaching the reasonably anticipated criminal litigation exemption.
I observe, as the majority does in passing, that this issue is complicated by the *1000 fact that Attorney General Charles Foti, the AG when this investigation was initiated and at the time the Orleans Parish special grand jury was convened, is no longer serving in this capacity. When asked at trial to address whether the AG's office was asserting any type of law enforcement privilege in general to the file the AG's office maintained,[2] the trial court was informed that no such general privilege was invoked. Thereafter, James "Buddy" Caldwell was elected as Louisiana Attorney General. In brief and at oral argument before this Court, the current AG vigorously invokes the public records exemption recognized in the Public Records Act. In this context and viewing the reasonably pending criminal litigation exemption in light of the purpose for that exemption, I find an agency's inaction, i.e., its failure to assert this exemption at trial, does not implicate its continued viability. See Hill v. Mamoulides,
In a related matter, although I disagree with the broad interpretation the appellate court gave to the question of whether criminal litigation was reasonably anticipated for purposes of La.Rev.Stat. 44:3(A)(1), I nonetheless find the trial court and the appellate court were presented with a full record of the investigative file with which to wrestle. In my view, it was the confluence two primary factors which complicated their review and which necessitate a remand of this matter: (1) the decision of the former AG to simply deposit a behemothic investigative record without vigorously asserting an exemption to disclosure of the individual documents; and (2) the AG's failure to provide an index which could properly allow a meaningful examination of the applicability of any law enforcement exemption to the individual documents.
In Conella v. Johnson,
[T]he trial court erroneously limited the factors that it used in making its decision to the contents of the file. The record reveals no evidence that a contradictory hearing, as required by statute and Louisiana jurisprudence, was held at the time of the in camera inspection. The Rapides District Attorney should have been given the opportunity to rebut by argument and other evidence that the items sought by Winn were privileged and should not be disclosed.
Winn v. City of Alexandria, 94-206 (La. App. 3 Cir. 10/5/94),
As noted hereinabove, the former AG chose not to assert the law enforcement privilege at the trial court hearing to the extent the current AG now embraces. Because *1001 of the procedural posture the AG adopted in this case at the time of trial, it is evident the lengthy hearings conducted did not fully explore the criminal litigation exemption as envisioned in the statutes and as developed in the jurisprudence.
Because the present case involves an excess of 50,000 pages of documents, I would call the parties' attention to the particularization needed in the application of the asserted law enforcement exemption. La.Rev.Stat. 44:3 requires more than judicial acceptance of a general assertion of privilege. Skamangas v. Stockton, 37,996 (La.App. 2 Cir. 3/5/02),
Having called attention to the need for a meaningful contradictory hearing as required in La.Rev.Stat. 44:3(C) and considering the complexity of the record, I would further find it appropriate to provide guidance to the trial court, as the appellate courts did in Skamangas and Freeman, supra, on the manner to proceed in the adjudication of the public records request. In this regard, I find the following guidelines identified in Judge Guidry's partial dissent in the present case helpful and, as modified, would suggest them for implementation on remand, to-wit:
(1) All documents the Attorney General has provided as representative of its investigative file shall remain confidential and under seal with the 19th Judicial District Court and shall remain sealed pending expiration of appellate delays;
(2) An index[3] to the entire investigative file shall be required. This index shall be accompanied with a certification from the custodian that all contents of the file were included in the index. The index shall numerically reference each document and generally reference the substance of each document so that the general substance of each document is ascertainable while shielding the public from view of the specific content and/or potentially private or confidential data. This document shall remain confidential *1002 and be initially presented to the trial court, under seal, for an in camera inspection;
(3) The trial court shall conduct an in camera inspection of the index to ensure all contents of the investigative file are itemized and that adequate descriptions are available to the parties;
(4) Before making the index available to the parties, the trial court shall make all needed redactions to the index;
(5) The trial court shall set a reasonable time for the parties to present written challenges. Challenges shall be presented in response to a specific document as itemized in the index and shall not be made in globo;
(6) With regard to challenges, a representative of the Attorney General's Office shall have to state the particular privilege claimed and a meaningful opportunity for cross-examination shall be provided for each asserted privilege. Intervenors shall also be afforded the right to provide a specific challenge to a specific document;
(7) The trial court shall then examine each document and delete by excising, blocking out, cutting out or withholding in toto any reference to privileged information or issue a ruling declining the release of such documents. Any such judgment shall reference the specific document as itemized on the index.
In summation, in the determination of whether a public record is subject to disclosure, the applicability of a statutory disclosure exemption as to a specific document, once asserted, becomes central to a proper disposition of whether the law requires disclosure. Although the exemption must be weighed as part of the public records dispute, La.Rev.Stat. 44:3(C) and longstanding jurisprudence require a full contradictory hearing in the trial court on this issue. Therefore, because of the peculiar evolvement of the law enforcement exemption in the present case and my concern that the requirement for a full meaningful contradictory hearing was not met at the hearing in the trial court, I agree with the majority's reversal of the court of appeal's holding on the issue of the law enforcement exemption on the ground that its determination was overly broad.
Furthermore, I disagree with the majority's determination not to address the Does' contention that the AG's file, including material not presented to the grand jury and material prepared before the grand jury was impaneled, was considered secret. I find the failure to address this contentionÔÇöone which involves the AG's issuance of La.Code Crim. Proc. art. 66 subpoenas, the question of whether secrecy applies to any interviews the AG or the DA conducted with witnesses prior to the convening of the grand jury, and to what extent La.Code Crim. Proc. art. 434 may be applicable to correspondence between the offices of the AG and DAÔÇömay needlessly complicate the hearing on remand.
Finally, I find the majority opinion remiss in failing to address the Does' contention that they have a twofold right of privacy: first to maintain the secrecy of their identifies and also to any statements made by them to the AG's office. Regardless of the "reasonably anticipated criminal litigation" exemption delineated in La.Rev. Stat. 44:3, I find the Does' privacy issue viable and in need of resolution in this Court. In my view, the failure to address this concern in this forum further and needlessly clouds the proceedings on remand to the trial court.
For the foregoing reasons, I respectfully concur, in part, and dissent in 07-KK-1853 and 07-KK-1870, In Re: A Matter under Investigation, and concur only in the results of 08-CC-1066, Jane and John Does *1003 v. Charles Foti, Attorney General for the State of Louisiana, et al.
NOTES
Notes
[*] Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case. Traylor, J., retired. Justice Traylor retired after oral argument and he has not participated in the deliberation of this case following his date of retirement, May 31, 2009.
[1] LifeCare is a healthcare provider that rented space from Tenet-Memorial and operated a separate acute care facility on the seventh floor of Tenet-Memorial Medical Center.
[2] The record suggests that the grand jury was impaneled in February 2007, but did not convene until May, and conducted its meetings through July 2007.
[3] It has come to this court's attention that there exists a unique practice in some, if not all, of the divisions in the Orleans Parish Criminal District Court that mandates the filing of pleadings with the judge of each division rather than with the Clerk of Court for the Orleans Parish Criminal District Court. As a result, parties seeking to view the records have at times encountered difficulty identifying pleadings and filings, resulting in a decentralized and cumbersome system ripe for error and abuse. As noted in a letter dated September 11, 2008, from the Clerk of Court of the Orleans Parish Criminal District Court to this court, a search of the clerk's files revealed no records concerning this case.
The "record" filed with this court consists of an unpaginated file compiled through the efforts of Judge Calvin Johnson, retired, supernumerary judge appointed by this court for the purpose of gathering documents and filings related to this matter. The file presented to this court was not prepared by the Clerk of Court for the Orleans Parish Criminal District Court as required by La.C.Cr.P. art. 917, nor does it bear any certification, as required by La.C.Cr.P. art. 918, that the file lodged with this court is indeed the complete record of the trial court proceedings. Nevertheless, C.Cr.P. art. 917 provides that "[f]ailure of the Clerk to prepare and lodge the record on appeal either correctly or timely shall not prejudice the appeal...." In any case, the lack of an official record in this case raises our concern, and we urge the Orleans Parish Criminal District Court to address this procedures such that the Clerk of Court can abide by the responsibilities entrusted to him and perform the duties legally required of him.
[4] The AG scanned the documents in his file, assigned them a title and stored them on digital media. The index is a printout of the titles of the scanned items.
[5] Specifically, the trial court found that: (1) patient medical records and LifeCare's personnel and internal investigative files were not public records subject to disclosure, (2) documents received or produced by the AG prior to the date the Orleans grand jury was impaneled is not grand jury secret under La. C.Cr.P. art. 434 and should be released with limited exceptions, (3) certain correspondence between the AG and DA sent while the grand jury was impaneled was covered by grand jury secrecy and should not be disclosed, and (4) any additional document in the AG's file created or received after the grand jury was impaneled should be submitted to the trial court under seal for an in camera review to determine whether it communicated matters occurring at or directly connected to the grand jury meetings. The court further determined that the Does were not "confidential informants" pursuant to
[6] Guidry, J., dissented in part and concurred in part. Judge Guidry would have affirmed part of the trial court's judgment, but would have vacated that portion of the trial court's judgment regarding the distribution or release of the AG's investigative file. Judge Guidry would have found that that portion of the trial court's judgment was too vague and abstract, and was contrary to the spirit of the Public Records Act. Instead, Judge Guidry would have remanded the matter to the trial court and ordered proceedings consistent with a list of enumerated guidelines.
McClendon, J., also dissented in part. While Judge McClendon believed there was a reasonable anticipation of criminal litigation, she would have found that the right to object to the disclosure of the file is limited to those entities listed in
Finally, Welch, J., also dissented in part and concurred in part. On the showing made, Judge Welch would have found no error in the trial court's ruling.
[7] In brief to this court, the AG asserts that the original records were returned to Tenet-Memorial on Friday, September 14, 2007. Although the same analysis applies to both the originals and the copies for purposes of determining whether they are "property seized" within the meaning of
[8]
A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
(1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest; otherwise, Paragraph (2) of this Section shall apply.
[9]
[10] In arriving at its conclusion, the Court recognized that significant jurisprudence tending to establish a contrary conclusion existed. Oklahoma Press,
[11] See also Dionisio,
The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative `stop' in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit:
`The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.' United States v. Doe (Schwartz),
[12] This is, of course, not to say that subpoenas duces tecum can not implicate the Fourth Amendment. To the contrary, while valid subpoenas duces tecum do not constitute seizures, invalid subpoenas, which are defined by the Supreme Court as those that are not sufficiently limited in scope, relevant in purpose, or specific in directive such that compliance will be unreasonably burdensome, Donovan,
[13]
F. Notwithstanding any other provision of law to the contrary, after a period of ten years has lapsed from the date of death of a person by other than natural causes, and upon approval by the district court having jurisdiction over any criminal prosecution which may result due to the death of such person, any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative files or evidence or potential evidence, or any other record, document, or item relating to said death shall, upon request, provide copies of all such files, records, and documents to immediate family members of the victim and shall provide unlimited access for any and all purposes to all such evidence, potential evidence, and other items to any member of the immediate family and to any person or persons whom any member of the immediate family has designated for such purposes. The access granted shall include but not be limited to the examination, inspection, photographing, copying, testing, making impressions, and the use in any court proceeding of and conducting forensic studies on such evidence, potential evidence, and other items. For the purposes of this Subsection, the term "immediate family" shall mean the surviving spouse, children, grandchildren, and siblings of the victim.
[14] This is, of course, subject to any exceptions contained within the statute itself.
[15] As noted above, we need not reach the issues of grand jury secrecy and the plaintiffs' privacy rights at this time, but the trial court is not prevented from reaching them if, on remand, it concludes that criminal litigation is not reasonably anticipated.
[1] Although Assistant Attorney General Shafer was questioned and testified as to whether criminal litigation is reasonably anticipated,
[2] I also question whether any other party but the State has a right to assert this exception. It seems to me that the exception from disclosure found in
[1] When I read La.Rev.Stat. 44:3(A)(1) in light of its purpose and effect, i.e., to protect pending litigation, I do not find support for the expansive reading of this statutory provision these parties advance. To the contrary, I find that only the listed agencies in La.Rev. Stat. 44:3(A) may assert the exemption found in La.Rev.Stat. 44:3(A)(1).
[2] The transcript indicates that the AG did invoke an exclusion for some documents or parts of documents, e.g., the file LifeCare volunteered to the AG pursuant to a confidentiality agreement, patient information, and similar personal data about employees, but did not exert the law enforcement exemption to particular items in its file. Rather, the AG simply presented its file in toto and left it to the trial court to determine what should and should not be released.
[3] My review of the record shows that on August 28, 2007, the trial court admitted into evidence two DVDs, containing documents of approximately 50,000 pages, that the AG offered and further ordered that this evidence remain under seal. At that same time, the AG introduced an index into evidence which purported to reference the documents on the DVDs. The testimony of Ellen Anderson, the AG investigative analyst who helped compile the index, revealed myriad problems with the index, i.e., the index lacked a systematic method of pagination; there was no way to tell from the face of the index what relationship any specific document had to the grand jury; an examiner of the index could not identify the documents separately and did not identify either the sender or recipient of any particular document; and there was no way to tell what was in the correspondence file, and whether that file contained subpoenas, memoranda or other like material.