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Porter v. Baton Rouge Police Department

Court of Appeals of Louisiana, First Circuit

April 12, 2017

JOEL PORTER
v.
BATON ROUGE POLICE DEPARTMENT

         APPEALED 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

          Elton Heron Geismar, Louisiana and Joel G. Porter Baton Rouge, Louisiana Attorneys for Plaintiff/ Appellee Joel G. Porter.

          Jeff 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.

          McDONALD, J.

         This 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.

         FACTS AND PROCEDURAL HISTORY

         Mr. 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.

         The City of Baton Rouge/Parish of East Baton Rouge (City/Parish)[1]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.

         After a 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.

         On 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."

         After a 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 15, 2015.

         By 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."

         Thereafter, 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.

         Mr. 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.

         In 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.

         On 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.

         THE WRIT APPLICATION

         On June 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 ...


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