94 0996 La.App. 1 Cir. 1/27/95, Louisiana Riverboat Gaming Com'n, In re

• Decision Date: 27 January 1995
• Parties: 94 0996 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 775

659 So.2d 775

94 0996 La.App. 1 Cir. 1/27/95

In re LOUISIANA RIVERBOAT GAMING COMMISSION and Louisiana

State Police Gaming Enforcement Division.

No. 94 CW 0996.

Court of Appeal of Louisiana, First Circuit.

Jan. 27, 1995.

Rehearing Denied March 21, 1995.

Writ Denied June 2, 1995.

Richard Ieyoub, Atty. Gen., Jennifer Schaye and Thomas Warner, III, Baton Rouge, for plaintiff-appellant State of La., through the Louisiana Riverboat Gaming Com'n.

Doug Moreau, Dist. Atty., Aaron Brooks and Patrick H. Martin, Baton Rouge, for Dist. Attorney's Office, East Baton Rouge Parish.

Howard P. Elliott, Jr. and Stephen A. Quidd, Baton Rouge, for Riverboat Gaming Enforcement Div.

Before EDWARDS, LeBLANC and PITCHER, JJ.

[94 0996 La.App. 1 Cir. 2] PITCHER, Judge.

This court granted the application for a writ of certiorari filed by the Louisiana Riverboat Gaming Commission, an agency within the Department of Public Safety and Corrections, Public Safety Services (Commission). The Commission sought review of the trial court's decision that determined that the District Attorney for East Baton Rouge Parish could represent the interests of the people of the State of Louisiana. The trial court ruled that because there was a conflict between the legal interests of the Commission and the legal interests of the State of Louisiana, the Attorney General could not represent both the Commission and the State of Louisiana. For the following reasons, we reverse the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

On April 11, 1994, the Commission filed a petition for declaratory judgment. The Commission sought a judicial determination of the validity of administrative rules adopted by the Commission. The petition alleged that, pursuant to its rule-making authority, the Commission drafted and adopted rules which construed the provisions of the Louisiana Riverboat Economic Development and Gaming Control Act (Gaming Act) in a manner the Commission believed to be consistent with the declared policy of the state, so as to uphold the intent of the legislature and the constitutionality of the Act. The validity of the Commission's rules came into dispute; the most controversial rule allows the Commission to issue certificates of preliminary and final approval ¹. It is the position of the Commission that the certificate of approval is principally a vehicle to enable the Commission to secure, from potential applicants, the information [94 0996 La.App. 1 Cir. 3] requisite to making the determinations charged to it under its rule-making authority, and a certification by the Commission that the applicant has met its criteria pertaining to economic development, berth, dock, safety, design, etc.

The Commission's petition for declaratory judgment was filed pursuant to LSA-R.S. 4:556 which provides, in pertinent part:

A. The division or the commission may obtain a judicial determination of any question of construction or validity of a provision of this Chapter or any rule or regulation of the division or commission by bringing an action for a declaratory judgment in the Nineteenth Judicial District Court in accordance with the provisions of the Louisiana Code of Civil Procedure.

B. When an appeal is brought by a person other than the division, the division shall be made a party to the action.

* * * * * * Pursuant to LSA-R.S. 4:556 B, the Commission named the Riverboat Gaming Enforcement Division, an agency within the Department of Public Safety and Corrections, Office of State Police (Division), as a party to this action.

On April 19, 1994, the Commission amended the petition to reflect that the caption of the suit was to read as follows:

THE STATE OF LOUISIANA, THROUGH THE LOUISIANA RIVERBOAT GAMING COMMISSION VERSUS THE LOUISIANA STATE POLICE RIVERBOAT GAMING ENFORCEMENT DIVISION

The petition was further amended to reflect that the Division was to be made a defendant in this matter.

On April 19, 1994, Lady Luck Casino Baton Rouge, Inc. (Lady Luck) filed a petition of intervention, claiming that it was an indispensable party to these proceedings. Lady Luck alleged that it had not received one of the fifteen preliminary certificates of approval from the Commission; nevertheless, its application for a license with the Division was still pending. Lady Luck contended that the issuance of the preliminary certificates of approval was an attempt by the Commission to "reduce, limit and usurp" the powers and the duties granted to the Division by the Gaming Act. ²

On April 26, 1994, the District Attorney for East Baton Rouge [94 0996 La.App. 1 Cir. 4] Parish, Doug Moreau, filed a petition for declaratory judgment in this proceeding on behalf of the State of Louisiana ³. The District Attorney contended that he had the authority to bring this action pursuant to LSA-R.S. 16:1 and La. Const. Art. 5, § 26(B) (1974). The District Attorney alleged that the people of the State of Louisiana had an interest in preserving the integrity of the law as enacted by the legislature; therefore, the state, as a sovereign, had an interest in bringing this action for a declaratory judgment.

The petition filed by the District Attorney alleged that the Commission, pursuant to the legal advice of its statutory legal advisor, the Attorney General, had promulgated administrative rules to govern the activities of the Commission. The petition further alleged that many of these rules exceeded the authority delegated to the Commission by the Act and thus, were null, void and "utterly without effect". ⁴

On April 27, 1994, the Commission filed an opposition to the intervention ⁵ of the District Attorney of East Baton Rouge Parish. In this opposition, the Commission alleged that (1) the District Attorney of East Baton Rouge Parish had no authority to supersede the Attorney General's representation of the State of Louisiana and (2) the District Attorney of East Baton Rouge Parish had no authority to intervene in the proceedings.

A hearing on this matter was held on April 28 and May 2, 1994. At the beginning of these hearings, the trial court noted that the only issue for the court to address was whether the District Attorney could intervene or file a petition for declaratory judgment on behalf of the State of Louisiana in lieu of the [94 0996 La.App. 1 Cir. 5] Attorney General representing the State. Over the objection of the Commission, the District Attorney was allowed to introduce evidence in an attempt to establish a conflict of interest on the part of the Attorney General. It was the position of the Commission that the hearing should be limited to the issue of whether the District Attorney could intervene on behalf of the State of Louisiana.

The trial court ultimately denied the Commission's opposition to the intervention of the District Attorney. In doing so, the trial court made the following findings:

(1) In this lawsuit, there exists a conflict between the legal interests of the Riverboat Gaming Commission and the legal interests of the State of Louisiana itself.

(2) Because of the conflict, the Attorney General may not represent both the Riverboat Commission and the State of Louisiana in this suit.

(3) The Louisiana Riverboat Economic Development and Gaming Control Act mandates that the Attorney General represent the Riverboat Gaming Commission in all civil proceedings, as he had done by filing this Declaratory Judgment suit on behalf of the Commission.

(4) The District Attorney for the Nineteenth Judicial District is a proper counsel to represent the interests of the people of the State of Louisiana in this action. LA. Const. Art. 5, § 26 and La.R.S. 16:1(B).

The trial court gave its oral reasons for judgment on May 2, 1994 and signed the written judgment on May 4, 1994. On May 4, 1994, the trial court denied a motion for a stay of these proceedings filed by the Commission.

On May 3, 1994, the Division filed an answer to the Commission's petition for declaratory judgment. The Division alleged that the rules promulgated by the Commission were invalid, null and without effect because the Commission had acted in violation or in excess of its statutory authority.

On May 6, 1994, this Court denied the Commission's application for a stay of the proceedings pending disposition of the Commission's application for supervisory writs because the relator had failed to comply with several of the Uniform Rules of Louisiana Courts of Appeal (Docket Number 94 CW 0940).

A second application for a stay of the proceedings was denied by this Court on May 10, 1994 (Docket Number 94 CW 0948). In denying the stay, this Court noted that relator could seek [94 0996 La.App. 1 Cir. 6] expedited review of the writ application once it was filed.

On May 20, 1994, this Court ordered that a writ of certiorari issue in this matter. Additionally, all proceedings were stayed pending this Court's decision on relator's writ application.

DISCUSSION

The District Attorney filed the petition for declaratory judgment in this proceeding on behalf of the State of Louisiana based on his opinion that the State of Louisiana was not a party to this lawsuit and its interests were unrepresented. Because the State of Louisiana was unrepresented, the District Attorney argued that he had the statutory and constitutional obligation to represent the State. Alternatively, the District Attorney argued that if the Attorney General made the State of Louisiana a party to this lawsuit, then the Attorney General could not represent both the Commission and the State of Louisiana because to do so would be a conflict of interest.

The Commission, on the other hand, argued that this action was instituted by the State of Louisiana through one of its agencies. The Commission argued that the State of Louisiana was already being represented by the Attorney General. Thus, to allow the District Attorney to represent the State of Louisiana would, in effect, allow the District Attorney to supersede the Attorney...