City of Baton Rouge v. Ross

• Citation: 654 So.2d 1311
• Parties: 94-0695 La
• Decision Date: 28 April 1995
• Court: Supreme Court of Louisiana

Page 1311

654 So.2d 1311

94-0695 La. 4/28/95

CITY OF BATON ROUGE v. Shelton ROSS.

No. 94-KA-0695.

Supreme Court of Louisiana.

April 28, 1995.

Richard P. Ieyoub, Atty. Gen., Carl James Jackson, City Atty., for applicant.

David William Price, Leon Jackson, for respondent.

[94-0695 La. 1] CALOGERO, Chief Justice. ^*

Shelton Ross was charged by the City of Baton Rouge with violating a municipal ordinance which prohibits "drug traffic loitering." Ross filed a motion to quash alleging that the ordinance was unconstitutional and expressly preempted by legislative enactment. The City Court of Baton Rouge granted defendant's motion to quash, finding the ordinance unconstitutionally vague and overbroad, and invalid under the express legislative preemption provision of LSA-R.S. 14:143. ¹

The City of Baton Rouge appealed the decision, invoking our appellate jurisdiction under Article V, § 5(D) of the Louisiana Constitution of 1974. Based upon our review of the record and our examination of the applicable constitutional, statutory, and municipal law, we affirm the trial court's ruling that the "drug traffic loitering" ordinance is expressly preempted by LSA-R.S. [94-0695 La. 2] 14:143, and therefore affirm the judgment quashing the affidavit charging a violation of the municipal ordinance. Because we affirm the trial court's ruling on nonconstitutional grounds, the Court finds it unnecessary to address the portions of the trial court's judgment declaring the ordinance unconstitutional.

I. Facts and Procedural Background

On September 29, 1993, two Baton Rouge City Police officers were parked at a corner on Chippewa Street in Baton Rouge. Two men, one of them the defendant, Shelton Ross, were leaning against a fence nearby. Although the two individuals were not engaged in any obvious criminal activity, the officers nonetheless called them over to their vehicle. One officer then questioned the two individuals while the other searched the ground near where the men had been standing. A piece of paper containing three rocks of cocaine was found near the fence, and the two men were issued misdemeanor summonses.

On October 20, 1993, the City of Baton Rouge filed a misdemeanor affidavit in the Baton Rouge City Court charging Shelton Ross with one count of violating Title 13:1055 of the Baton Rouge Code of Ordinances pertaining to "drug traffic loitering." ² The ordinance provides in pertinent part as follows:

Section 13:1055. Drug-Traffic Loitering.

(a) As used in this section:

* * * * * *

[94-0695 La. 3] 5) "Public Place" is an area generally visible to public view and includes, but is not limited to, streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, transit stations, shelters and tunnels, automobiles (whether moving or not), and buildings, including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them.

(b) A person is guilty of drug-traffic loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to engage in unlawful conduct contrary to L.R.S. 40:966 through 40:971.1.

* * * * * *

(d) A person is not guilty of drug-traffic loitering if he or she merely remains in a public place without also intentionally soliciting, inducing, enticing, or procuring another to engage in unlawful conduct contrary to L.R.S. 40:966 through 40:971.1.

On October 29, 1993, Ross filed a motion to quash the misdemeanor affidavit. He alleged a number of grounds for the invalidity of the ordinance in his motion, the only one of which is pertinent to this opinion being a contention that the ordinance was preempted by LSA-R.S. 14:143, see Note 1, supra, which makes it a municipal misdemeanor to "engage in unlawful conduct contrary to L.R.S. 40:966 through 40:971.1."

The trial court conducted hearings on the motion to quash on January 4, 1994, and January 7, 1994. No witnesses were sworn, both hearings consisting solely of the arguments of counsel upon the motion. The defense argued that the ordinance, insofar as it represented an attempt by a political subdivision of the State of Louisiana to enact an ordinance criminalizing conduct also punishable as a felony under state law, was preempted by LSA-R.S. 14:143.

In response, the city prosecutor first observed that LSA-R.S. 14:143 was enacted in response to past occasions where a criminal defendant had been convicted of violating a municipal ordinance, by definition a misdemeanor, and had then been able to successfully plead double jeopardy when faced with a subsequent State felony prosecution arising out of the same conduct. The city prosecutor then noted that conviction under the ordinance required proof of an element, i.e. that the crime be committed "in the public," not found in any comparable state felony statutes. The city prosecutor concluded from this analysis that in this case double jeopardy would not lie for a subsequent state felony prosecution, and that [94-0695 La. 4] therefore the ordinance was not preempted by LSA-R.S. 14:143.

The trial court granted the defendant's motion to quash. In addition to declaring the ordinance unconstitutionally vague and overbroad, the trial court also found the ordinance to be preempted by LSA-R.S. 14:143. ³ The trial court signed a written judgment ordering the prosecution quashed on January 7, 1994.

The City of Baton Rouge timely perfected an appeal to this Court, invoking our jurisdiction under Article V, § 5(D) of the Louisiana Constitution of 1974. Jurisdiction is proper in this case because it involves an ordinance passed by a duly constituted municipality of this state which has been declared unconstitutional. See Note 2, supra; Holthus v. Louisiana Racing Comm'n, 569 So.2d 547 (La.1990). In addition, our jurisdiction extends to all issues of law presented by the trial court's judgment. La. Const. Art. V, § 5(A), (C), (E). Compare La. Const. Art. V, § 5(F); Church Point Wholesale Beverage v. Tarver, 614 So.2d 697, 700 (La.1993).

For the reasons given below, we affirm the trial court's decision that the ordinance is invalid on nonconstitutional grounds, i.e. that it is expressly preempted by LSA-R.S. 14:143, and therefore affirm the trial court's judgment quashing the misdemeanor affidavit. Our finding on the nonconstitutional issue makes a review of the trial court's declaration of the ordinance's unconstitutionality, the original basis of this Court's jurisdiction in this matter, superfluous, and accordingly we find it unnecessary to reach the constitutional issues ruled upon below. For this reason, we move directly to a discussion of the effect of the statutory preemption provision of LSA-R.S. 14:143 upon the [94-0695 La. 5] ordinance under which Shelton Ross is being prosecuted.

II. Is Title 13:1055 of the Baton Rouge Code of Ordinances Expressly Preempted by LSA-R.S. 14:143?

LSA-R.S. 14:143 provides that "[n]o governing authority of a political subdivision shall enact an ordinance defining as an offense conduct that is defined and punishable as a felony under state law." The trial court found that Title 13:1055 of the Baton Rouge Code of Ordinances fell within this statutory preemption. The trial court's ruling was based first upon a construction of the statute as a safeguard against duplication of prosecution under state and local criminal provisions, and second upon the conclusion that the City's ordinance penalized a significant amount of "conduct" already regulated by state felony statutes.

Before we consider the application of this statute to this particular ordinance, however, it is necessary that we first construe LSA-R.S. 14:143 to determine its parameters, as neither this Court nor any court of appeal has had the opportunity to interpret LSA-R.S. 14:143 since its passage in 1983. Because the origins of this particular statute shed much light on its purpose and intended scope, we begin with a brief outline of the developments that led to the passage of LSA-R.S. 14:143.

A. History of LSA-R.S. 14:143

The problem this statute is designed to address arises as a consequence of the United States Supreme Court's holding in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). In Waller, the Court held that for double jeopardy purposes, a municipality and a state constitute the same sovereign, and therefore a conviction or acquittal entered as a result of the violation of a municipal ordinance bars a later prosecution by a state's attorney under a state statute proscribing the "same offense." The difficulties that Waller created for those state jurisdictions, like Louisiana, which allow different tiers of government to define and prosecute criminal violations was well-stated by the California Supreme Court in Kellett v. Superior Court of Sacramento County, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, 209 (1966) (In Bank ):

We recognize that in many places felonies and misdemeanors are [94-0695 La. 6] usually prosecuted by different public law offices and that there is a risk that those in charge of misdemeanor prosecutions may proceed without adequately assessing the seriousness of a defendant's conduct or considering whether a felony prosecution should be undertaken. When the responsibility for the prosecution for the higher offense lies with a different public law office there is also the risk that a well advised defendant may plead guilty to a misdemeanor to foreclose a subsequent felony prosecution the misdemeanor prosecutor may be unaware of or may choose to ignore. Cases may also arise in which the district attorney is reasonably unaware of the felonies when the misdemeanors are prosecuted. In such situations ... a defendant guilty of a felony may escape proper punishment.

Compare Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); People v. Stefan, 146 Ill.2d 324, 166 Ill.Dec. 910, 586 N.E.2d 1239 (1992); ...