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In re Under Investigation by Jefferson Parish Office of Inspector General Mark Spears

Court of Appeals of Louisiana, Fifth Circuit

October 21, 2019

IN RE: MATTER UNDER INVESTIGATION BY THE JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL MARK SPEARS
v.
JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL IN RE JEFFERSON PARISH OFFICE OF INSPECTOR GENERAL

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 789-232 C/W 793-101

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.

         WRIT GRANTED FOR LIMITED PURPOSE; JUDGMENT VACATED AND MATTER REMANDED

         Relator, the Jefferson Parish Office of Inspector General ("JPOIG"), seeks this Court's supervisory review of the trial court's June 21, 2019 judgment granting the petition for declaratory judgment filed by Mark Spears, an elected member of the Jefferson Parish Council, and ordering the JPOIG's office to provide to Councilman Spears a "fair description of the subject matter of the subpoena ad testificandum, and of any documents to be reviewed during his interview, so that he may assert any legislative privilege that may exist prior to being interviewed." For the following reasons, we grant the JPOIG's writ application for the limited purpose of vacating the trial court's June 21, 2019 judgment, and remand the matter for further proceedings consistent with this writ disposition.

         The JPOIG is an office within the Jefferson Parish Government created by local ordinance, Jefferson Parish Code of Ordinances ("JPCO") § 2-155.10, pursuant to authority granted by the Jefferson Parish Charter § 4.09 and state law. La. R.S. 33:9611 et seq.[1] Pursuant to La. R.S. 33:9613(A)(1), the JPOIG may make investigations and examinations, within or outside of the State of Louisiana as it deems necessary, in order to carry out the duties of its mandate under law, and may gather evidence in any legally appropriate manner. La. R.S. 33:9613(A)(3) provides that in the performance of its duties, an "office of inspector general may compel the attendance of witnesses to be deposed under oath" by "issuing a subpoena" upon judicial approval from the district court. If a person refuses to obey a subpoena issued by the JPOIG, the district court may issue an order requiring the person to appear before the court to show cause why an order shall not be issued ordering such person to obey the subpoena. La. R.S. 33:9613(A)(3).

         Councilman Spears, as an elected official of Jefferson Parish, is subject to the jurisdiction of the JPOIG. La. R.S. 33:9613. It is the duty of every Parish official to cooperate with the JPOIG in any investigation. JPCO § 2-55.10(19). According to the JPOIG's writ application, commencing in 2018, the JPOIG has made attempts to schedule the interview of Councilman Spears in relation to an open matter under the investigative jurisdiction of the JPOIG to no avail.

         On November 30, 2018, pursuant to La. R.S. 33:9613(A)(3), the JPOIG initiated a summary proceeding by filing a motion for subpoena ad testificandum in the 24th Judicial District Court for the Parish of Jefferson, captioned In re matter under investigation by the Jefferson Parish Office of Inspector General, civil action number 789-232, Division "I," seeking judicial approval for the issuance of a subpoena to Councilman Spears. An order was entered that same day authorizing the JPOIG to issue the subpoena. On December 5, 2018, Councilman Spears was served with the subpoena ad testificandum commanding him to appear at the JPOIG's office on December 7, 2018 to be interviewed under oath. Councilman Spears did not appear for the interview. Consequently, on December 12, 2018, the JPOIG filed a "Motion for Show Cause Hearing on Subpoena Ad Testificandum," which the court set for hearing on January 10, 2019. On December 28, 2018, Councilman Spears filed an unopposed motion to continue and reset the hearing; the matter was continued without date.

         Though La. R.S. 33:9613(A)(4)(c) provides the person served with the subpoena the opportunity to file a motion to amend or quash the subpoena, Councilman Spears chose not to avail himself of this option. Instead, on March 14, 2019, Councilman Spears initiated an ordinary proceeding in the 24th Judicial District Court for the Parish of Jefferson by filing a petition for declaratory judgment against the JPOIG, captioned Mark Spears vs. Jefferson Parish Office of Inspector General, civil action number 793-101, Division "A," regarding the scope of the subpoena ad testificandum served upon him in the matter pending in Division "I." Specifically, Councilman Spears sought a declaration that, prior to being interviewed, he is entitled to a fair description of the subject matter of the subpoena ad testificandum, and of any documents to be reviewed in connection with his interview, in order that he may be able to evaluate whether the subject matter or documents may be subject to any existing legislative immunity or privilege afforded to him by law.

         On March 27, 2019, the JPOIG filed a "Motion to Reset Show Cause Hearing on Subpoena Ad Testificandum." The JPOIG's motion also sought sanctions "for certain representations made in pleadings and for failing to give notice to the court of a pending matter involving the same parties in accordance with the Uniform Rules of District Court, Rule 9.4." The JPOIG's motion was "fixed for hearing/trial" on April 25, 2019. Councilman Spears filed an opposition to the JPOIG's motion on April 22, 2019.

         The hearing on the JPOIG's rule to show cause on subpoena ad testificandum came before the district court on April 25, 2019, however, the matter was continued to May 30, 2019. According to the JPOIG's writ application, "[t]he court declined to consider the merits [of] the motion before it was filed by the JPOIG because there was pending a Petition for Declaratory Judgment in another division which raised relevant legal issues."

         On April 30, 2019, the JPOIG filed a motion to transfer and consolidate Councilman Spears' declaratory judgment action pending in Division "A," with the lower numbered matter pending in Division "I," to "comply with Uniform Rules of District Court, Rule 9.4." The district court set the JPOIG's motion to transfer and consolidate for contradictory hearing on May 30, 2019, to be heard at the same time as the JPOIG's "Motion for Show Cause Hearing on Subpoena Ad Testificandum, La. R.S. 96:3313(A)(3)," which had previously been set for that date. Councilman Spears filed a response to the JPOIG's motion to transfer and consolidate stating that he had "no objections to, and will agree to the transfer of this matter, provided all rights are reserved to ensure that any consolidation for trial purposes does not prejudice [his] right to the exercise of all of the ordinary proceedings [sic] provisions applicable" to his petition for declaratory judgment.

         On May 30, 2019, the JPOIG's show cause hearing on subpoena ad testificandum and for sanctions, and its motion to transfer and consolidate came for hearing. The trial court's minute entry reflects that JPOIG's motion to transfer and consolidate was granted and a judgment to that effect was signed in open court that day. The minute entry also reflects that the JPOIG's motion to show cause on subpoena ad testificandum and for sanctions was "not taken up." The minute entry for May 30, 2019 evidences that no other motions or matters were set for hearing on that date. Specifically, there is no indication in the court's minute entry (or otherwise in the record of the writ application) that Councilman Spears' declaratory judgment action-an ordinary proceeding which that day had been ordered to be transferred from Division "A" to Division "I"-was set for trial on the merits in Division "I" on May 30, 2019. Nonetheless, the trial court granted Councilman Spears' petition for declaratory judgment in open court and directed his counsel to prepare a judgment.

         On June 21, 2019, the trial court issued a written judgment in accordance with its oral ruling stating, in pertinent part:

This matter came before the Court on the 30th day of May 2019, upon the rule of the Jefferson Parish Office of Inspector General's Subpoena ad Testificandum and for Sanctions, and Mark Spear's [sic] Petitio ...

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