APPEAL FROM THE 11TH JUDICIAL DISTRICT COURT, PARISH OF
WEIMER, Justice. 
case is before the court on direct appeal from a district
court ruling declaring unconstitutional the jury verdict
regime found in La. Const. art. I, § 17 and La. C.Cr.P.
art. 782, which allow for verdicts on a vote of ten of twelve
jurors for felonies committed before January 1, 2019. The
district court committed the following two interrelated
errors: (i) creating, on that court's own initiative
(sua sponte), a constitutional challenge to
statutory law and to provisions of the Louisiana Constitution
and (ii) striking down the jury verdict regime as
unconstitutional on the basis of an earlier, nonbinding
district court holding. Based on these errors, this court
vacates the district court's ruling and remands for
AND PROCEDURAL HISTORY
separate bills of information, the defendant was charged with
one count of domestic abuse battery by strangulation in the
presence of a minor in violation of La. R.S. 14:35.3(B)(7),
(I) and with one count of possession of a firearm by a
convicted felon in violation of La. R.S. 14:95.1. These
alleged felony crimes both occurred on December 5, 2016.
defendant pleaded not guilty, and the charges were slated for
a jury trial.Owing in large measure to the
defendant's vacillation between being represented by
appointed counsel and seeking retained counsel, the trial
date was continued several times.
January 24, 2019, the state filed a motion in limine
seeking to have the district court declare that the defendant
would be tried by a jury composed of twelve jurors, ten of
whom must concur to render a verdict. The next day, without a
hearing, the district court signed an order denying the
state's motion in limine and declaring that the
defendant is entitled to a unanimous jury verdict pursuant to
the district court's own earlier ruling in State v.
Melvin Cartez Maxie, 11th Judicial District
Court, No. 13-CR-72522, rendered on October 11, 2018.
Maxie, decided by the same judge, the
district court ruled that the nonunanimous jury regime ran
afoul of the federal constitution's Equal Protection
Clause. The state appealed, but before the record was lodged
in this court, the state dismissed the appeal, apparently to
once again vest the district court with jurisdiction, based
on Mr. Maxie's intent to submit a guilty
state appealed the instant case, urging that this court has
jurisdiction over the district court's declaration of a
statute's unconstitutionality. See La. Const.
art. V, § 5(D), quoted infra.
preliminary matter, this court is called on to evaluate the
very nature of the district court's ruling because the
state and the defendant differ on its purported effect. The
state argues the ruling is a declaration of
unconstitutionality, which in straightforward fashion renders
the ruling susceptible of a direct appeal to this court. The
defendant argues the ruling is confined to denying the
state's motion in limine and indicating the
defendant is entitled to a unanimous jury verdict for
adjudicating his potential guilt. The after effect of the
defendant's argument is that a direct appeal to this
court is unavailable; any appeal by the state must be taken
to the intermediate court of appeal. The defendant
acknowledges, however, that even if a direct appeal to this
court is disallowed, this court has discretion to convert the
state's appeal to a review under this court's
position of the state is correct. The district court's
ruling places its prior decision in Maxie as the
ultimate authority on the number of jurors required for a
guilty verdict,  notwithstanding that La. Const. art. I,
§ 17 and La. C.Cr.P. Art. 782(A) explicitly allow
for guilty verdicts on a vote of ten of twelve jurors for
felonies committed before January 1, 2019. By subordinating
constitutional and statutory provisions to the district
court's own ruling in Maxie, the district court
essentially ruled Louisiana's constitutional and
statutory provisions are unconstitutional in reference to the
federal constitution. Dispelling any doubt, the order of
appeal notably recites that the district court rendered a
"decision that Article 1, § 17 of the Louisiana
Constitution of 1974 and Article 782 is facially
unconstitutional," and "the State's Motion for
Appeal to the Louisiana Supreme Court is
GRANTED." Thus, the state's direct
appeal to this court is proper. See La. Const. art.
V, § 5(D), quoted infra.
determined the district court indeed declared that La. Const.
of 1974 art. I, § 17 and La. C.Cr.P. art. 782 are
unconstitutional, the next step in the analysis is guided by
a considerable history of Louisiana jurisprudence prohibiting
courts from sua sponte striking down constitutional
and statutory law. In State v. Board of Supervisors, La.
State Univ. & Agr. & Mechanical College, 228 La.
951, 84 So.2d 597, 600 (1955), this court held that "all
Acts of the Legislature are constitutional until declared
otherwise in proceedings brought contradictorily between
interested persons." More recently, this court found the
principles prohibiting a court from sua sponte
striking down statutory law also prohibit any sua
sponte striking down provisions of the state
constitution, inasmuch as "[a] constitutional provision
is a more basic, fundamental provision than a statutory
enactment." State v. Bazile, 11-2201, p. 6 (La.
1/24/12), 85 So.3d 1, 4. In Bazile, this court
explained the prohibition against a court raising a
constitutional challenge sua sponte is rooted in the
fact that "judges were charged by their judicial oaths
to enforce" the laws as written. Id., 11-2201
at 5, 85 So.2d at 4 (citing Greater New Orleans
Expressway Com'n v. Olivier, 04-2147, p. 10 (La.
1/19/05), 892 So.2d 570, 577).
in the defendant's position, noted earlier, that the
district court did not issue a declaration of
unconstitutionality, is that the district court did not do so
sua sponte. This court disagrees with the defendant
as to the substance of the district court's ruling and
further review of the procedural origins of that
determination compels the conclusion that the district
court's ruling was rendered sua sponte. While it
is true that "there is no single procedure for attacking
the constitutionality of a statute," this court has
identified a typical three-step analysis for a challenger to
carry his burden to prove unconstitutionality. State v.
Hatton, 07-2377, p. 14 (La. 7/1/08), 985 So.2d 709, 719.
"First, a party must raise the unconstitutionality in
the trial court; second, the unconstitutionality of a statute
must be specially pleaded; and third, the grounds outlining
the basis of unconstitutionality must be
particularized." Id. Here, it was not the
defendant, but the state that raised a question about the
number of jurors necessary to render a guilty verdict. The
state sought recognition of the nonunanimous verdict
requirement via a motion in limine, which,
consistent with the state's present position, did not
urge that the nonunanimous verdict provisions were
more usual case, a determination that the district court
erred in creating a constitutional issue where none was
presented might end the analysis of the district court's
ruling. See, e.g., Bazile, supra;
Hatton, supra. This is not a usual case. The
substantive reason the district court gave within the ruling
itself for finding the nonunanimous verdict
provision unconstitutional was the district court's
earlier holding in Maxie. For his part, the
defendant argues "[t]he district court was entitled and
bound to rule in accordance with its own prior, undisturbed
judgment in Maxie." This court disagrees.
as noted above, was a district court ruling that the
nonunanimous jury verdict was unconstitutional, pursuant to
the federal constitution. The chief obstacle to applying the
holding in Maxie to other cases is the same
provision presently empowering this court to review the
declaration of unconstitutionality in this case,
i.e., La. Const. art. V, § 5(D) ("a case
shall be appealable to the supreme court if … a law or
ordinance has been declared unconstitutional."). Stated
simply, if the district court's Maxie ruling
prevents the district court from reviewing the
constitutionality of nonunanimous verdicts, this court will
likewise be prevented from appellate review of any evidence
and argument on constitutionality. Such a situation would
defeat the authority accorded to this court to serve as the
final, statewide authority as to what laws pass
analogous criminal case, City of Shreveport v.
Baylock, 236 La. 133, 107 So.2d 419 (1958), this court
considered whether a district court judge was bound by a
prior declaration of unconstitutionality by another district
court judge. Just as here, the prior declaration of
unconstitutionality had not been evaluated on appeal. The
defendant argued the declaration of unconstitutionality
barred his prosecution under an ordinance that had been
declared to be unconstitutional. This court held that the
prior declaration of unconstitutionality by the district
court did not bar the defendant's prosecution under that
ordinance. Id., 107 So.2d at 422.
Baylock, this court surveyed the jurisprudence of
other jurisdictions and noted a consensus of "holdings
… that a definitive judgment of a tribunal that is not
a court of last resort is conclusive only for the particular
case decided and is not binding in future cases."
Id. at 421. Importantly, this court also reasoned
that if the prior district court judgment of
unconstitutionality was binding in a later case, that would
bar "this court on a review of the judgment . . . from
later determining the same constitutional issue."
Id. at 422. Although Baylock was decided
under a previous state constitution, these rationales remain
applicable today because the constitutionally-mandated
jurisdictional principles then and now are substantially the
same. Compare La. Const. of 1921 art. VII, § 10(2)
(1958) ("Cases in which . . . a law of this state has
been declared unconstitutional" are among those that
"shall be appealable to the Supreme Court."), with
La. Const. of 1974 art. V, § 5(D) ("a case shall be
appealable to the supreme court if … a law or
ordinance has been declared unconstitutional.").
concluding juncture, a longstanding rule-reflecting the
primary role of legislation in the justice system-bears
repeating: "Statutes are generally presumed to be
constitutional and the party challenging the validity of the
statute bears the burden of proving it is
unconstitutional." Hatton, 07-2377 at 13, 985
So.2d at 719 (citing State v. Fleury, 01-0871, p. 5
(La. 10/16/01), 799 So.2d 468, 472; State v.
Brenner, 486 So.2d 101, 103 (La. 1986); and State v.
Rones, 223 La. 839, 67 So.2d 99, 105 (1953)). Likewise,
"[a] constitutional provision begins as a legislative
enactment and, therefore, also requires enforcement by the
district court." Bazile, 11-2201 at 6, 85 So.3d
at 4 (citing La. Const. art. XIII, § 1(A) and (C)).
Measured by these principles, the district court's
declaration of unconstitutionality in this case represents
two simultaneous ...