Board of Com'rs of Orleans Levee Dist. v. Connick

• Decision Date: 09 March 1995
• Citation: 654 So.2d 1073
• Parties: 94-3161 La
• Court: Louisiana Supreme Court

Page 1073

654 So.2d 1073

94-3161 La. 3/9/95

BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. Harry F. CONNICK, as District Attorney for the Parish of Orleans.

No. 94-C-3161.

Supreme Court of Louisiana.

March 9, 1995.

Ira J. Middleberg, Alan D. Weinberger, Rebecca J. King, Middleberg, Riddle & Gianna; John Wilson Reed, J.E. Smith, Graymond F. Martin, Charles W. Salley, Ira J. Rosenzweig, Hon. William J. Guste, Jr., Lewis O. Unglesby, Arthur A. Lemann, III, for applicant.

William F. Wessel, Mark D. Pethke, Camille B. Tifft, James A. Smith, II, for respondent.

Ellis P. Adams, Jr., for amicus curiae, Louisiana Dist. Attys. Ass'n.

Joseph P. Brantley, IV, for amicus curiae, Louisiana Casino Cruises.

[94-3161 La. 1] CALOGERO, Chief Justice. ^*

This case arises out of an action for declaratory and injunctive relief filed by the Board of Commissioners for the Orleans Levee District (hereinafter the "Levee Board") against Harry F. Connick, District Attorney for the Parish of Orleans, an action which seeks to prevent Connick from investigating or indicting for criminal violations the operators and/or employees of Showboat Star Casino, which is operating under a riverboat gaming license issued by the Riverboat Gaming Enforcement Division of the Louisiana State Police. See LSA-R.S. 4:501 et seq. ("Louisiana Riverboat Economic Development and Gaming Control Act"). In response to a motion by the Levee Board for a preliminary injunction against Connick, the trial court ruled that LSA-R.S. 14:90(D) represents an unconstitutional intrusion into the [94-3161 La. 2] constitutionally defined power of the district attorney. ¹ See La. Const. Art. V, § 26(B). The trial judge accordingly signed a judgment denying the plaintiff's request for a preliminary injunction, dissolving an extant temporary restraining order, dismissing the defendant's pending exceptions of no right and no cause of action, and declaring LSA-R.S. 14:90(D) unconstitutional.

The Levee Board appealed that decision, invoking this Court's appellate jurisdiction under Article V, § 5(D)(1) of the Louisiana Constitution of 1974. Based upon our review of the record and relevant principles of Louisiana constitutional and statutory law, we vacate the trial court's order that LSA-R.S. 14:90(D) is an unconstitutional exercise of legislative authority. We affirm, however, the trial court's denial of the motion for a preliminary injunction and the trial court's ruling dissolving the temporary restraining order, thus freeing the district attorney to continue his investigation and/or prosecution of this case in criminal district court. Finally, we sustain Connick's exception of no cause of action and accordingly dismiss the plaintiff's lawsuit.

I. Facts and Procedural History

LSA-R.S. 14:90(A) defines the crime of "gambling" as "the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery or contrivance whereby a person risks the loss of anything of value in order to realize a profit." LSA-R.S. 14:90(D) provides, however, that the activities otherwise barred by LSA-R.S. 14:90(A) do not constitute the crime [94-3161 La. 3] of "gambling" and "shall not be suppressed by any state or local law enforcement officer" if they are conducted "upon a riverboat as defined and authorized in R.S. 4:501 through R.S. 4:562." The latter statutory sections include LSA-R.S. 4:525(B)(1)(a), which maintains that, subject to certain limited exceptions "no gaming may be conducted while a riverboat is docked."

On November 18, 1994, District Attorney Connick contacted, among others, the owners of the Showboat Star Casino and informed them that he believed their practice of conducting gaming activities while not cruising violated LSA-R.S. 4:525(B)(1)(a)'s conditional prohibition of dockside gambling. Connick asserted that this violation removed the casino operators from the protective scope of LSA-R.S. 14:90(D), and that those operators therefore could face prosecution for gambling activities under LSA-R.S. 14:90(A). On December 8, 1994, the Orleans Parish grand jury opened an investigation into possible state criminal violations stemming from the operation of the Showboat Star Casino, located at South Shore Harbor on Lake Pontchartrain in New Orleans.

On December 16, 1994, the Levee Board filed a lawsuit against Connick in the Civil District Court for declaratory and injunctive relief. ² In its petition the Levee Board prayed for the immediate issuance of a temporary restraining order, to be followed by a preliminary injunction, and ultimately a judgment declaring that Connick has no power "to indict or promote the indictment or prosecute or promote the prosecution" of any person operating under a license "to conduct gaming activities on a riverboat." ³

The Civil District Court, through the duty judge, issued a temporary restraining order prohibiting Connick "from indicting or urging the indictment" of "any officer or employee of the Showboat Star Partnership for any violation of La.R.S. 14:90" as long as that person is under the authority of a valid riverboat gaming [94-3161 La. 4] license. In his reasons for judgment, the duty judge concluded that "the Legislature intended to vest the gaming enforcement division with exclusive jurisdiction to enforce" the Riverboat Gaming Control Act. The duty judge went on to note that "[i]f, as the District Attorney suggests, local authorities are allowed to prosecute because they believe the failure to sail is culpable, the statute would be effectively neutered."

Connick responded to this ruling with a motion to dissolve the temporary restraining order. He also filed exceptions of no right and no cause of action, claiming that the Levee Board lacks any standing to bring its action (and thus enjoyed no right of action) and additionally that its petition sets forth no cause of action. On December 20, 1994, the trial court conducted a hearing on the Levee Board's motion for a preliminary injunction, Connick's motion to dissolve the temporary restraining order, and the latter's peremptory exceptions of no right and no cause of action.

On December 21, 1994, the trial court issued a judgment in which it declared LSA-R.S. 14:90(D) to be an unconstitutional exercise of legislative power because it "seeks to limit the power of the District Attorney in the area of riverboat gambling." The trial court found this to be an infringement of the broad discretion accorded prosecutors in the investigation and prosecution of violations of state criminal statutes under Article V, § 26(B) of the Louisiana Constitution of 1974. ⁴ The trial judge raised the question of the statute's constitutionality on her own motion; it was not raised or argued by either party in any pleading or at any hearing.

Based upon this finding of constitutional infirmity, the trial court dissolved the temporary restraining order and denied the Levee Board's motion for a preliminary injunction. The trial judge [94-3161 La. 5] also ordered the defendant's exceptions of no right and no cause of action dismissed, presumably finding it unnecessary to reach the merits of these exceptions in light of its finding that LSA-R.S. 14:90(D), which the plaintiff claimed exempted licensed riverboat gaming operators from LSA-R.S. 14:90(A)'s gambling prohibition, was unconstitutional.

The Levee Board appealed that decision to this Court. In addition, an association of riverboat gaming interests ("the Association"), ⁵ with an avowed interest in these proceedings, has appealed the decision as well. See LSA-C.C.P. Art. 2086. We denied the Levee Board's motion, filed in conjunction with this appeal, for an order to stay the district attorney's grand jury investigation regarding the Star Casino. Board of Comm'nrs of the Orleans Levee District v. Connick, 94-CD-3121, 648 So.2d 907 (La.1995). However, we did stay the effect of the Civil District Court's order in the case insofar as it declared LSA-R.S. 14:90(D) unconstitutional, pending disposition of this appeal. Board of Comm'nrs of the Orleans Levee District v. Connick, 94-CD-3129, 648 So.2d 907 (La.1995).

We now entertain this case under Article V, § 5(D)(1) of the Louisiana Constitution of 1974 which provides this Court with appellate jurisdiction over all cases in which "a law or ordinance has been declared unconstitutional." In addition, we consider all other issues ruled upon by the trial court pursuant to Article V, § (5)(F), which grants this Court "appellate jurisdiction over all issues involved in a civil action properly before it." See Church Point Wholesale Beverage v. Tarver, 614 So.2d 697, 700 (La.1993).

[94-3161 La. 6] II. The Trial Court's Ruling that LSA-R.S. 14:90(D)

is Unconstitutional

As earlier indicated, no party to this proceeding, either in the Civil District Court below or in this Court, has challenged the constitutionality of LSA-R.S. 14:90(D). Rather, the trial court raised the issue of the statute's constitutionality on its own motion. Given the facts and legal issues presented in this particular case, the trial court erred in doing so.

As a general rule, courts should not reach the question of a statute's constitutionality when its unconstitutionality has not been placed at issue by one of the litigants. See Vallo v. Gayle Oil Co. Inc., et al, 94-CA-1238, 646 So.2d 859 (La.1994). Unless a statute as drawn is clearly unconstitutional on its face, it is preferred that the parties to a dispute uncover any constitutional defects in a statute through the dialectic of our adversarial system; for a court sua sponte to declare a statute unconstitutional is a derogation of the strong presumption of constitutionality accorded legislative enactments. See State v. Cinel, 94-KA-0942, 646 So.2d 309, 313 (La.1994) (citations omitted ) ("[w]henever it is possible, [Louisiana] courts have the duty to interpret statutes in a manner consistent with" our state and federal constitutions)....