State v. SchwehmState v. Schwehm
Prosecutions for malfeasance of office as defined by
At the time the defendant took office in December of 1990,
In 1992, the legislature plunged the entire matter of litter fine remittance into confusion by passing two conflicting laws, one purporting to repeal subsection
The lack under state and local law of any time period for remittance of the litter fines by justice of the peace courts, together with the confusion interjected into the law by the conflicting 1992 enactments regarding
When Levy inquired about the fines, the defendant explained that the Parish had never instructed him about remitting the amounts collected. According to Levy, the defendant also told the auditor “that the costs of assessing and collecting the litter fines actually exceeded the amount of the proceeds from the fines.” In the same meeting, however, the defendant informed the auditor “that any excess that he would have from a litter fine over expenses was split equally between himself and the Constable.”
The auditors’ investigation revealed that by September of 1993, the defendant had collected at least five thousand dollars in litter fines. At the same time, the defendant‘s Justice of the Peace account reflected a balance of only $3,500.00. When Levy combined the litter fines with the total amount the defendant had charged for issuing peace bonds over the same three-year period, the subject of the second malfeasance count, the figure rose to ten thousand dollars, nearly three time the amount shown as the balance in the Justice of the Peace account at the end of September, 1993. Levy‘s investigation had also revealed a pattern of disbursements from the account to the defendant in increasing amounts, from early draws of five hundred dollars to one thousand dollars by the spring of 1993. The auditors testified that they found nothing wrong in the defendant‘s use of the account to pay himself and the constable. However, the largest draw occurred on September 24, 1993, when the defendant wrote a check on his Justice of the Peace account for $8,840.00 payable to his professional law firm account maintained in New Orleans. That transfer of funds explained the low balance in the Justice of the Peace account for the month. Levy testified that by November of 1993, the balance in the Justice of the Peace account had risen to $8,710.00, still significantly lower than the total amounts collected by the defendant in litter fines and peace bond charges.
According to Belinda Durr, who worked as defendant‘s secretary for approximately five months at the end of 1992, when the office received cash for litter fines, defendant used the money in a variety of ways, dividing it with the constable “for office expenses or to go to lunch or whatever they wanted to do with it.” Durr testified that when she asked
On this evidence, rational jurors could find that the missing cash fines, the defendant‘s statements to Durr, Perry, and Ventura, and especially the low balance in the Justice of the Peace account in September of 1993, below the total amount collected in litter fines and coinciding with the transfer of nearly nine thousand dollars from the account to his professional law account in New Orleans, all reflected the defendant‘s design to use the fine money collected to benefit himself and, coincidentally, his public office and not the governing authority of the parish, and that he had thereby intentionally refused to perform the duty placed upon him by law. As the state established on redirect of Carlton, the confusion in state law did not affect collection of the litter fines from January 1, 1991 until the summer of 1992, when either act 361 or 362 went into effect. State law and local ordinance gave defendant the right to expect reimbursement for the expense of collection from the St. Tammany Parish Police Jury, but only after he had remitted all of the fine money collected, and then only by half. The large transfer from defendant‘s Justice of the Peace account to his professional law account in September of 1993, after the effective date of 1993 La. 579, which clarified his duty in this respect, negated any defense suggestions that, at least with respect to the litter fines collected, the defendant maintained his St. Tammany account in the manner of an escrow account, holding the fines collected until the end of his term in office, the 1992 confusion in the law subsided, or until someone asked him for the money.
Accordingly, we reinstate the defendant‘s conviction and sentence on the count of malfeasance involving the collection of litter fines and remand this case to the court of appeal for consideration of the defendant‘s remaining assignments of error pretermitted on original appeal.
JUDGMENT REVERSED IN PART; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED TO THE COURT OF APPEAL.
LEMMON, J., dissents and assigns reasons.
LEMMON, J., Dissenting.
When a public official is charged with and convicted of theft of public funds, the betrayal of his public trust should be reflected in the harshness of the sentence. However, defendant was not charged with theft, apparently because of the difficulty of proving the intent element of the crime. Therefore, defendant was charged with the easier-to-prove crime of malfeasance.
Malfeasance requires proof that a clear duty was violated. State v. Perez, 464 So.2d 737 (La.1985). Here, there was clearly a duty to remit litter fines, but the time for performing that duty was not expressed in either