City of Baton Rouge v. Short

• Decision Date: 11 April 1977
• Docket Number: No. 58973,58973
• Citation: 345 So.2d 37
• Parties: CITY OF BATON ROUGE v. Paul B. SHORT.
• Court: Louisiana Supreme Court

Page 37

345 So.2d 37

CITY OF BATON ROUGE v. Paul B. SHORT.

No. 58973.

Supreme Court of Louisiana.

April 11, 1977.

Joseph F. Keogh, City-Parish Atty., W. George Bayhi, Asst. City-Parish Atty., for plaintiff-respondent.

Julius F. Harrell, Baton Rouge, for defendant-relator.

Ellis P. Adams, Jr., Baton Rouge, Executive Director, Louisiana District Attorneys Assn., amicus curiae.

MARCUS, Justice.

Paul B. Short was charged by affidavit ¹ in the city court for the City of Baton Rouge with violation of a local parking ordinance and with driving while intoxicated in violation of La.R.S. 14:98. The city prosecutor acted as the prosecuting attorney on both of these charges. At the beginning of trial, defendant objected to prosecution by the city prosecutor on the ground that La.Const. art. 5, § 26(B) (1974) vests the district attorney with exclusive charge of every criminal prosecution by the state in his district. The trial judge overruled defendant's objection; defendant was tried by judge and found guilty as charged. For violation of the local parking ordinance, defendant was ordered to pay a fine of ten dollars; for violation of the state statute against driving while intoxicated, he was sentenced to pay a fine of one hundred twenty-five dollars plus eight dollars court costs, in default thereof ten days imprisonment. We granted defendant's application for writs in this case to consider the correctness of the judge's ruling permitting the city prosecutor to prosecute defendant for a violation of the state statute against driving while intoxicated, La.R.S. 14:98. 341 So.2d 411 (La.1976). ²

We note at the outset that the jurisdiction of the city courts over first and second offenses of driving while intoxicated is not in dispute. Under the new Louisiana constitution, city courts retain the jurisdiction vested in them under the 1921 constitution over criminal cases prosecuted under state law which are not punishable by imprisonment at hard labor. La.Const. art. 5, § 15 (1974); La.Const. art. 7, § 51 (1921); La.R.S. 13:1894. First and second DWI offenses fall into this category and therefore may properly be prosecuted in city court. The sole issue presented for our consideration herein is whether or not prosecution in city court by a City prosecutor for a violation within the limits of the city or municipality of the state statute against driving while intoxicated impermissibly infringes on the broad powers vested in the district attorneys of this state by the 1974 Louisiana constitution.

Prior to the adoption of the 1974 constitution, the powers and duties of state district attorneys were defined only by statute. La.R.S. 16:1 provided in pertinent part that '(t)he district attorneys throughout the state . . . shall represent the state in all criminal actions.' ³ More particularly, La.R.S. 16:3 directed that '(t)he district attorneys throughout the state shall represent the state in all criminal prosecutions before city courts constituted by law.' Subsequent to these enactments, the legislature passed La.R.S. 13:1894.1 containing the following relevant provisions:

. . . (A)ll proseuctions in any city, parish or municipal court, the city, municipal and traffic courts of the City of New Orleans excepted, based on or arising out of the operation of a vehicle by a person while intoxicated shall be charged and prosecuted solely under the provisions of R.S. 14:98.

For the purposes of this section all city, parish and municipal courts shall have concurrent jurisdiction with the district courts over violations otherwise subject to their jurisdiction provided for by R.S. 14:98 except in those cases wherein the person or defendant is charged as a third or subsequent offender under the provisions of R.S. 14:98(D) and (E).

All such charges filed under the provisions of this section shall be on affidavit and Such charges shall be filed and prosecuted by the city attorney or the city prosecutor when said charges are filed on account of violations occurring within the territorial limits of the city or municipality and by the district attorney or his representative when said charges are filed on account of violations occurring outside of such territorial limits of the city or municipality. (Emphasis added.)

La.R.S. 13:1894.1 clearly purported to confer on city attorneys power to prosecute certain violations of state law in city courts, which power had previously been vested in the state district attorneys by La.R.S. 16:3. At the time of its passage, however, no provision of our state constitution prohibited such legislative action. In City of Baton Rouge v. Mahnken, 260 La. 1002, 257 So.2d 690 (1972), we reconciled the two legislative pronouncements, finding that insofar as La.R.s. 13:1894.1 provided for prosecution of the state statute against driving while intoxicated by a City prosecutor in city court, it had impliedly repealed the earlier enacted La.R.S. 16:3 to the extent that the statutes were in conflict.

In 1974 the legislature approved and the people of this state voted to adopt a new constitution wherein the powers and duties of the state district attorneys are for the first time constitutionally defined. Al.Const. art. 5, § 26 provides:

(A) Election; Qualifications; Assistants. In each judicial district a district attorney shall be elected for a term of six years. He shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election. A district attorney may select assistants as authorized by law, and other personnel.

(B) Powers. Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.

(C) Prohibition. No district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge. A violation of this Paragraph shall be cause for removal.

It is fundamental that when a constitutional provision is plain and unambiguous, its language must be given effect. Police Jury v. St. Charles Parish Waterworks Dist. No. 2, 243 La. 764, 146 So.2d 800 (1962). It is likewise settled that when a statute conflicts with a constitutional provision, the statute must fall. Roy v. Edwards, 294 So.2d 507 (La.1974); Police Jury v. St. Charles Parish Waterworks Dist. No. 2, supra. In our view, La.Const. art. 5, § 26(B) clearly and unambiguously vests the District attorney or his designated assistant with the exclusive charge of every criminal prosecution by the state in his district. This power is subject only to certain limited powers of the attorney general provided in La.Const. art. 4, § 8 (1974). State v. Neyrey, 341 So.2d 319 (La.1976); Guidry v. Roberts, 335 So.2d 438 (La.1976). Insofar as La.R.S. 13:1894.1 provides that violations of the state statute against driving while intoxicated shall be filed and prosecuted in city court by a City prosecutor in his capacity as such ⁴ when such offenses occur within the territorial limits of a city or municipality, the statute is at variance with the broad constitutional powers accorded the district attorneys of this state. We therefore declare this provision, and this provision only, unconstitutional. Since defendant in this case was prosecuted by a City prosecutor under the language of La.R.S. 13:1894 herein declared invalid, rather than by the District attorney or his designated assistant, his conviction and sentence must be reversed. However, we will not give retroactive application to this decision. Rather, we give it only prospective application to trials commenced after publication of this opinion in West's Southern Reporter. Except where a new rule concerning the application of constitutional rights goes to the very integrity of the fact-finding process (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)), the cases do not force retroactive application. State v. Rester, 309 So.2d 321 (La.1975). We find no requirement of retroactive application in the instant case. We consider that the administration of justice would be better served by giving prospective application to this decision.

We now consider whether the remainder of the act may reasonably function without the offending provision or whether the statute must fall in its entirety. La.R.S. 13:1894.1 was enacted by Act No. 233 of 1970. Section 2 of the statute provides:

If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications and to this end the provisions of this act are hereby declared severable.

It has frequently been recognized by this court that the unconstitutionality of a portion of a statute does not necessarily invalidate the whole, particularly where there is a severability clause as here. But it is equally well settled that such rule applies only when the unconstitutional part is independent of and separable from the rest. If it is interrelated and connected with the other portions as to raise the presumption that the legislative body would not have enacted one part without the remainder, then the entire enactment is null. Guidry v. Roberts, 335 So.2d 438 (La.1976); Roy v. Edwards, supra; Gaudet v. Economical Super Market, Inc., 237 La. 1082, 112 So.2d 720 (1959).

The severability clause included in the statute under consideration herein creates a presumption of the enactment's severability in fact. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). We are satisfied that the portions of La.R.S. 13:1894.1,...