FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE
PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER
641155 HONORABLE DONALD R. JOHNSON, JUDGE
Heron Geismar, Louisiana and Joel G. Porter Baton Rouge,
Louisiana Attorneys for Plaintiff/ Appellee Joel G. Porter.
Landry Louisiana State Attorney General Andrea Barient David
Jeddie Smith Assistant Attorneys General Baton Rouge,
Louisiana Attorneys for Appellant State of Louisiana.
BEFORE: PETTIGREW, McDONALD, AND CALLOWAY, [*] JJ.
case involves a public records request pursuant to La. R.S.
44:3(F) made by Joel G. Porter on July 28, 2015, to the Baton
Rouge Police Department (BRPD), and in particular a subpoena
issued to an Assistant Attorney General.
AND PROCEDURAL HISTORY
Porter asked for the release of records and access to
evidence from the investigation into the 1985 murder of his
wife, Denise Washington Porter, for which Mr. Porter, who is
an attorney, was a suspect. Louisiana Revised Statute 44:3(F)
provides that ten years after the unnatural death of a
person, with the approval of the district court that would
have jurisdiction over any criminal prosecution which may
result due to the death of such person, immediate family
members of the victim may request from governmental agencies
copies of numerous materials related to the death.
City of Baton Rouge/Parish of East Baton Rouge
(City/Parish)answered the suit, maintaining that Mr.
Porter had sought to obtain the documents in question through
legal action in the United States District Court, Middle
District of Louisiana, which had issued a protective order in
favor of BRPD. The City/Parish also maintained that the
Middle District Court expressly stated that BRPD had readily
admitted throughout its deposition and motion for protective
order that Mr. Porter remained a suspect in the
investigation. After filing its answer, the City/Parish filed
a motion to quash.
hearing on Mr. Porter's public records request, the
district court ruled in favor of Mr. Porter and against BRPD,
finding that pursuant to La. R.S. 44:3(F), as the surviving
spouse of Ms. Porter, who died on March 15, 1985, Mr. Porter
had a right to access all records of the investigation into
her death, ordering BRPD to provide to Mr. Porter
"copies of all such files, records, and documents and
provide [Mr.] Porter with unlimited access for any and all
purposes to all evidence, potential evidence, and other items
from the investigation of the death of Denise Porter
including 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." The
district court ordered BRPD to produce the items to Mr.
Porter on or before September 10, 2015. That judgment was
signed on August 12, 2015.
September 9, 2015, BRPD filed an application for supervisory
writs with this court. On September 10, 2015, this court
denied the application for advisory writ, stating that
"we find that, as a matter of law, the trial court did
not err in ordering the disclosure of the records in its
August 12, 2015 judgment." Porter v. Baton Rouge
Police Department, 2015-CW-1388 (La.App. 1 Cir. 9/10/15)
(unpublished writ action). Thereafter, Mr. Porter filed a
motion to enforce the district court order, noting that there
had been "some compliance" with the order by BRPD,
but not "full compliance."
hearing on October 15, 2015, the district court signed an
order directing BRPD to immediately comply with its August
12, 2015 order, to immediately produce a list of items, and
directing the Chief of Police, Carl Dabadie, Jr., to
immediately request that all other agencies, including the
Attorney General's Office, produce any and all
information to BRPD, or Mr. Porter, or his attorney. Further,
the district court ordered that the parties meet at an agreed
upon date, time, and place to compile a numerical or
alphabetical list of all the reports produced, and that Chief
Dabadie submit an affidavit immediately upon compliance with
the court's order. That judgment was signed on October
letter to Mr. Porter's attorney dated October 19, 2015,
an attorney for BRPD noted she had "attached four discs
and documents . . . received from the [Louisiana State
Police]" and that the Attorney General's office had
answered her inquiry by informing her that "their file
consists of BRPD police reports, crime scene photos and
[Louisiana State Police] lab reports. All of this information
has now been provided to you." She further stated that
the evidence review would begin at 8:30 on October 22, 2015.
In further compliance with the court's order, she further
provided that by letter to Mr. Porter's attorney dated
January 7, 2016, the attorney for BRPD stated that she was
attaching an invoice for two Louisiana State Police crime lab
reports "that have been generated since our last
disclosure to you."
on January 22, 2016, Mr. Porter issued a subpoena for the
deposition of Assistant Attorney General Matthew Derbes, and
issued a subpoena to the Attorney General's Office for
documents related to the investigation of Ms. Porter's
death by BRPD and the Attorney General's Office.
Derbes was personally served with the subpoena by a Sheriff
on January 28, 2016 for the deposition which was scheduled
for the next day, January 29, 2016. On January 28, 2016, the
Attorney General's Office filed a motion to quash the
subpoenas, asserting that Mr. Derbes was a non-party attorney
and that special rules applied before a subpoena could be
issued to an attorney in both civil and criminal cases. The
Attorney General's Office asked that the subpoenas be
quashed on the basis of insufficient notice under La. C.E.
arts. 507 and 508, and also because a required contradictory
hearing to determine whether the information requested by the
plaintiff was protected before the subpoena could be
determined to be proper had not been held.
response, the district court ordered the deposition of
Matthew Derbes stayed and set the matter for a contradictory
hearing on February 4, 2016. After the hearing the district
court took the matter under advisement, requested that the
parties submit post-hearing briefs on whether the Attorney
General "could be made a party", and set a
subsequent hearing for February 24, 2016. After the February
24, 2016 hearing, the district court granted the motion to
quash on the grounds that it was not issued "with
sufficient time" in accordance with law, denied the
motion to quash "on the remaining grounds[, ]" and
ordered the deposition of Mr. Derbes to take place within
fifteen days to determine "to what extent the [BRPD] had
complied with the October 15, 2015 [district court's]
ORDER instructing the [BRPD] to request all items belonging
to the [BRPD] to which Mr. Porter is entitled, pursuant to
La. R.S. 44:3(F), that are within the physical control and
possession of the Louisiana Attorney General's
Office." The judgment was signed on March 8, 2016. On
March 10, 2016, the district court signed an order granting
the Attorney General's Office a devolutive appeal from
that judgment, rather than the suspensive appeal it had
requested in its motion.
March 23, 2016, the Attorney General's Office filed an
emergency application for supervisory review with this court.
On March 29, 2016, this court granted the writ application,
ordered the proceedings stayed pending appeal, and ordered
the district court to grant the Attorney General's Office
a suspensive appeal. Porter v. Baton Rouge Police Department,
2016-CW-0382 (La.App. 1 Cir. 3/29/16) (unpublished writ
action). On March 30, 2016, pursuant to the order of this
court, the district court granted the Attorney General's
Office's suspensive appeal.
27, 2016, Mr. Porter filed an application for supervisory
writs, which was referred to this panel. Upon review of Mr.
Porter's writ application, for numerous reasons it
appears that this filing was intended to serve as his
appellee brief rather than as a writ. Therefore, Mr.
Porter's writ application is denied, and his writ
application will be considered ...