State v. O'REILLYState v. O'REILLY
At issue in this direct appeal is the constitutionality of that portion of
FACTS AND PROCEDURAL HISTORY
On January 6, 1999, defendant Robert J. O‘Reilly was charged by bill of information in the Twenty Second Judicial District Court, parish of St. Tammany, with driving while intoxicated (DWI), second offense (DWI 2), in violation of
In a separate proceeding, defendant Scott Brewster was charged by bill of information, also in the Twenty-Second Judicial District Court, parish of St. Tammany, with one count of DWI and one count of operating a motor vehicle without a headlight on each side of the vehicle in violation of
Defendants O‘Reilly and Brewster appealed separately to the district court, which affirmed their convictions and sentences. Defendants then separately applied to the court of appeal for supervisory writs. On its own motion, the court of appeal consolidated the two cases and ordered the parties to brief the issue of the constitutionality of
This court granted the State‘s writ application, and, pretermitting the merits of the case, found that in the absence of the issue being raised by the parties, the court of appeal erred in reaching the constitutionality of
On August 24, 2000, because of the recusal of the judges of the Twenty-Second judicial district court, this court appointed retired Judge Robert L. Lobrano as judge ad hoc for the purpose of hearing and disposing of the instant matter. Subsequently,
The State has appealed the district court‘s judgment directly to this court pursuant to
DISCUSSION
The issue presented in this appeal is whether that portion of
(a) Administer oaths and affirmations.
(b) Take acknowledgments, affidavits, and depositions.
(c) Act on felony charges through arraignment; however, the commissioner shall not accept pleas of guilty on or sign orders disposing of felony charges.
(d) Hear preliminary motions.
(e) In misdemeanor cases, conduct trials, accept pleas, and impose sentence.
(f) Preside over jury trials in misdemeanor cases.
(g) Fix bail in all matters.
(h) Sign and issue search and arrest warrants in accordance with the general provisions of law, including the requirement of showing probable cause.
(i) Find and punish for contempt of court as a district court judge.
(j) Conduct extradition hearings.
(k) Supervise defendants sentenced under the provisions of the drug court in accordance with the policies set down by the judges of the Twenty-Second Judicial District Court.
In the cases of O‘Reilly and Brewster, the commissioner exercised the power granted by
Our constitution provides that the judicial power of the state “is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.”
In Bordelon v. Louisiana Dep‘t of Corrections, 398 So.2d 1103 (La.1981), this court held that
Certain judicial power may be delegated without any abdication of the judge‘s fundamental responsibility for deciding cases. Delegation of power to conduct evidentiary hearings and to prepare proposed findings of fact and recommendations for disposition based on the evidence and the arguments is not inconsistent with the constitution and laws which vest the judicial power in judges of enumerated courts, as long as the judges retain the responsibility for making ultimate decisions in the case.
Id. at 1105 (citation omitted) (emphasis added).
Accepting guilty pleas, rendering verdicts after presiding over a trial, and imposing sentences are unquestionably final determinations which involve the exercise of adjudicatory power. In the instant case, the commissioner, pursuant to the authority granted by
The State contends that the local rules of the Twenty Second Judicial District Court provide that appeals from the commissioner‘s decisions shall be filed as a trial de novo to the district judges of that court and that this provision somehow validates any unconstitutional portions of
COURT: There are several questions I would like to ask from a factual standpoint and anyone can stand up and answer them.... One, in O‘Reilly, I am reading in the record, that it went to a district judge here. But reading the judgment of the district judge, it appears as though it was not a ... “de novo” hearing. Am I to understand that that‘s correct? ... It is written, the district judge‘s opinion is written as though it was a review of what the commissioner did.
O‘REILLY‘S COUNSEL: That is correct, Your Honor.
* * * *
COURT (To Brewster‘s counsel): Was there any hearing at all in the Twenty Second on your case before a district judge?
BREWSTER‘S COUNSEL: My appeal brief was filed and there was a court date set, but I was told that, you know—it wasn‘t set as—to my knowledge, as a de novo hearing. It was just to review the record and look at my appeal brief....
Thus, the record reveals that defendants did not, in fact, receive a trial de novo. Therefore, we need not determine whether such a trial would cure the constitutional infirmity in the statute.5
Finally, the State argues that
As mentioned previously, the only declaration of unconstitutionality before us in this direct appeal concerns
The unconstitutionality of one portion of a statute does not render the entire law unenforceable if the remaining portions are severable from the offending portions. State v. Brazley, 00-0923, p. 6 (La.11/28/00), 773 So.2d 718, 722; Pierce v. Lafourche Parish Council, 99-2854, p. 9 (La.5/16/00), 762 So.2d 608, 615; Perschall v. State, 96-0322, p. 28 (La.7/1/97), 697 So.2d 240, 259. The test for severability
The test for severability is whether the unconstitutional portions of the law are so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention of the legislative body enacting the law. To be capable of separate enforcement, the valid portion of an enactment must be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether the legislature would have passed the statute had it been presented with the invalid features removed. Where the purpose of the statute is defeated by the invalidity of part of the act, the entire act is void. Conversely, however, when the general objectives of the act can be achieved without the invalid part, the remaining parts of the act will be upheld.
Perschall, 96-0322 at 29, 697 So.2d at 260 (internal citations omitted).
In the instant case, it is clear that the removal of the provision that the commissioner‘s powers when hearing criminal matters may include the power to conduct trials, accept pleas, and impose sentences in misdemeanor cases will not destroy the legislative intent behind the statute. The legislative history of
The district court vacated and set aside defendants’ convictions and sentences based on the unconstitutionality of
The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person‘s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.
Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995) (internal citations omitted). Generally, to satisfy the de facto officer doctrine
the officer must be in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. A “de facto” official is one who by some color of right is in possession of office and for the time being performs his or her duties with public acquiescence, though having no right in fact; or, as otherwise stated, a person is a “de facto” officer when he or she is in possession of an office and discharges its functions under color of authority. A person is considered a de facto officer where the duties of the office are exercised: without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him or her to be the officer he or she assumed to be; under color of a known and valid appointment or election, but where the officer failed to conform to some precedent, requirement, or condition, such as to take an oath, give a bond, or the like; under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; or under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.
63C Am.Jur.2d § 23 (footnotes omitted). This court has held that until a de facto officer‘s title to the office is attacked directly and held to be invalid, “the acts of a de facto official are as valid and effectual, when they concern the public or the rights of third parties, as though he were an officer de jure....” State v. Stripling, 354 So.2d 1297, 1300-01 (La.1978).
Additionally, while it is generally true that in order for there to be a de facto officer, there must be a de jure office, an exception exists where an office is provided for by an unconstitutional statute and the incumbent, for the sake of public policy and public justice, will be recognized as an officer de facto until the unconstitutionality of the Act has been judicially determined in a direct proceeding for that purpose. Anderson v. Texas, 149 Tex.Crim. 423, 195 S.W.2d 368 (1946). Stated similarly, the Supreme Court of Minnesota has written:
The rule generally adhered to is that there can be no de facto officer unless there is a de jure office for him to fill. The rule is quite generally limited, or an exception thereto made, to this extent, that where by legislative act or municipal ordinance there is, in form, an office created and an officer elected
or appointed to such office, then, although the legislative act or ordinance is unconstitutional or invalid, the officer appointed and acting thereunder is an officer de facto until the act or charter provision is declared by the courts to be unconstitutional or invalid.
State ex rel. Tamminen v. City of Eveleth, 189 Minn. 229, 249 N.W. 184 (1933).
In the instant case, Commissioner Gleason was not a usurper of an office who was acting without color of right. Rather, he was at minimum a de facto officer sitting pursuant to an apparently valid statute whose unconstitutionality had not been attacked directly or declared at the time defendant O‘Reilly pleaded guilty and was sentenced and at the time Brewster was tried, found guilty, and sentenced. The district court judgment vacating and setting aside O‘Reilly‘s guilty plea and sentence and Brewster‘s guilty verdict and sentence must therefore be reversed. Although we recognize that the application of this doctrine to these particular defendants seems harsh, we find that public policy is best served by its application in this case.
We note that defendants have never been afforded a review by the court of appeal of the merits of their respective adjudications below. We therefore remand the case to the court of appeal for it to consider O‘Reilly‘s arguments relating to his guilty plea and sentence and Brewster‘s arguments relating to his guilty verdict and sentence.
DECREE
For the foregoing reasons, we affirm that portion of the judgment of the lower court declaring
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
LEMMON, J., dissenting in part.
I dissent from the majority‘s failure to reverse the convictions of the two defendants.
In City of Baton Rouge v. Cooley, 418 So.2d 1321 (La.1982), the defendant, prior to trial, challenged the legality of a nonelected judge‘s exercising judicial powers.1 This court, in a four-to-three decision, allowed a conviction under this unconstitutional procedure to stand, on the basis of the de facto officer doctrine. The Cooley decision, in effect, prevented a citizen accused of a misdemeanor in city court from directly challenging the unconstitutional exercise of judicial power (which could cause the citizen to be imprisoned for several months) and required the citizen to hire a lawyer to bring a civil action challenging the clearly unconstitutional appointment of the presiding judge. See Cooley at 1325 (Lemmon, J., dissenting).
While Cooley involved a challenge to a judge who was illegally exercising the powers of a constitutional office, the present case involves a challenge to an unconstitutionally created office, which is a much more significant situation.
In both Cooley and the present case, the defendant had standing to challenge directly, in the criminal proceeding rather
Notes
We note at the outset that we would ordinarily inquire into the advisability of deciding this constitutional issue in a case such as this where defendants are questioning the authority of the judge before whom they have been brought on criminal charges. See City of Baton Rouge v. Cooley, 418 So.2d 1321 (La.1982) (refusing to consider a similar constitutional issue and stating that a judge acting under color of right has the authority, capacity, and right to perform judicial duties, that that capacity cannot be challenged collaterally, and that the acts of a de facto judge, even if not de jure, are valid and binding). Due to the unique circumstances present in this case, however, we will forgo this inquiry and move directly into a discussion of the merits of the constitutional issue.
As discussed above, the constitutionality of La. R.S. 13:719 was initially raised not by the parties, but by the court of appeal on its own motion. In vacating the court of appeal‘s sua sponte declaration of unconstitutionality, this court remanded the case to the district court to allow defendants to specifically plead the statute‘s unconstitutionality and to fully litigate the issue. This court also dealt administratively with this issue, appointing a judge to replace Commissioner Gleason, at least until these cases and the issue concerning his jurisdictional authority are resolved, and a judge ad hoc for the purpose of hearing and disposing of the instant matter. These unique occurrences, all stemming from the court of appeal‘s sua sponte ruling on the constitutional issue, combined with the fact that the State has not argued that this court should not reach the merits of the constitutional arguments presented, lead us to proceed directly to the merits of defendants’ arguments. The principles espoused in Cooley and the cases cited therein are based on public policy rather than on constitutional or statutory law. We must therefore weigh the public policy supporting the general precept that litigants cannot collaterally challenge the authority of the judge before whom they have been brought on criminal charges against the unfairness that would result from the potential application of this principle to the defendants who find themselves in unique circumstances before this court. Because we find the interests of justice would be best served by addressing the merits of the constitutional issues presented in this case, we will do so without first addressing whether these defendants should be allowed to challenge the authority of Commissioner Gleason in this proceeding.
The statute at issue herein does not provide specifically for a de novo determination, but states in subsection (F):
An appeal may be taken to the district court from any determination made by the commissioner. The judges of the district court shall, by local court rule, establish a procedure for requesting an appeal and setting a time limit within which a party may request such appeal. Any party who is aggrieved by a judgment entered by a commissioner may appeal that judgment in the same manner as any other judgment entered by a district court.