Metro Riverboat Assoc. v. La. Gaming Bd.

Decision Date20 December 2000
Docket NumberNo. 99 CA 0863.,99 CA 0863.
PartiesMETRO RIVERBOAT ASSOCIATES, INC. v. The LOUISIANA GAMING CONTROL BOARD.
CourtCourt of Appeal of Louisiana — District of US

Before: CARTER, C.J., LeBLANC, FOIL, GONZALES, FOGG, PARRO, FITZSIMMONS, KUHN, GUIDRY, WEIMER, and PETTIGREW, JJ.

ON APPLICATION FOR REHEARING

GONZALES, J.

This matter was originally decided by this court as an appeal by the Louisiana Gaming Control Board (Board) from the district court decision on judicial review of the Board's conditional approval of a transfer of an interest in a riverboat gaming license. The petition for review was filed in the district court by Metro Riverboat Associates, Inc. (Metro), a partner in the Belle of Orleans, L.L.C. (Belle), the entity licensed to operate a riverboat gaming vessel on Lake Ponchartrain in New Orleans. Metro claimed that its co-owner in Belle1 should not have received a conditional approval from the Board to transfer its interest to a third party, Park Place Entertainment Corporation (Park Place), absent a public hearing and prior compliance with certain provisions of the Louisiana Gaming Control Law, La. R.S. 27:1 et seq. (Gaming Law). The district court vacated the decision of the Board and ordered the Board to conduct a public hearing on the issues after an application is submitted by Park Place pursuant to La. R.S. 27:73 and an investigation is conducted by the Louisiana State Police. In an appeal brought by the Board from the district court ruling, the original three-judge panel of this court affirmed the district court.2 In an application for rehearing, the Board requested that the original three-judge opinion be reconsidered en bane and the decision of the district court reversed. The Board asserts that Metro was not a party to the proceeding before it, and therefore, had no standing to appeal to the district court, and, that its action was not an appealable adjudication.3 For the reasons which follow, the rehearing application is granted.

JURISDICTION

As in any case before this court, the first issue that must be considered is whether the case is properly before the court and whether there is a basis for jurisdiction. Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. arts. 3 and 925. See also Whittenberg v. Whittenberg, 97-1424 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158; Johnson v. Vinson Guard Service, Inc., 577 So.2d 56, 58 (La.App. 1 Cir.1990), writ denied, 578 So.2d 915 (La.1991). This issue addresses the court's authority to adjudicate the cause before it; the issue may be considered at any time, even by the court on its own motion, at any stage of an action. Whittenberg, 710 So.2d at 1158; Tran v. Schwegmann's Giant Super Market, 609 So.2d 887, 889 (La.App. 4 Cir. 1992). See also Gravois v. Travelers Indemnity Company, 173 So.2d 550, 553 (La. App. 1 Cir.), writ denied, 247 La. 1016, 175 So.2d 301 (1965). Moreover, it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Renno v. Evans, 580 So.2d 945, 947 (La.App. 2 Cir. 1991). Therefore, we must nevertheless examine subject matter jurisdiction. See also Boeing Company v. Louisiana Department of Economic Development, 94-0971 (La.App. 1 Cir. 6/23/95), 657 So.2d 652, 659.

The original three-judge panel in this case ruled that the Board's December 29, 1998 resolution resulted in a "decision" or "order" as defined by the Louisiana Administrative Procedure Act (LAPA), which constituted an "adjudication," thereby giving the district court jurisdiction to review the Board's resolution under La. R.S. 49:964. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 99-0863, p. 6 (La.App. 1 Cir. 5/12/00), 761 So.2d 694. The original three-judge panel went on to affirm the district court on the merits of the appeal. Upon reconsideration of the case, this en bane panel concludes that the prior determination of this court was correct on the merits; however, we decide herein that the review should have been conducted under our supervisory jurisdiction.

In general, appellate review of administrative agency matters is governed by La. R.S. 49:964(A)(1) of the LAPA, which provides that "a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under [the LAPA]." Judicial review is confined to the record. La. R.S. 49:964(F). Furthermore, under La. R.S. 49:964, only a "final decision or order" "in an adjudication proceeding" is appealable. "Decision" or "order" is defined by La. R.S. 49:951(3) as "the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing. . ." The LAPA defines "[a]djudication" as an agency process for the formulation of a decision or order. La. R.S. 49:951(1). An adjudication for purposes of the LAPA means an agency proceeding that results in a disposition that is required by constitution4 or statute to be made after notice is given and a hearing is held. Unless the constitution or some statute requires a hearing and notice, an agency action is not an adjudication for purposes of the LAPA. Delta Bank & Trust Company v. Lassiter, 383 So.2d 330, 333 (La.1980).

The LAPA applies to all agencies unless excepted by either the LAPA itself or the constitutional provisions and statutes governing each individual agency.5 Corbello v. Sutton, 446 So.2d 301, 303 (La. 1984). The general rule regarding applicability of laws is that the more specific governs over the more general. State in Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, 730, on rehearing, 93-1125 (La.10/17/94), 643 So.2d 743, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). With regard to administrative agencies, the more specific laws are those which govern the agency; these specific laws govern over the more general laws of the LAPA. Corbello, 446 So.2d at 303. The provisions of the LAPA were not intended to supercede specific provisions of other administrative acts, or to supercede the rights and remedies created under those acts. Rather, the LAPA was intended to create procedures in those instances where none existed. Corbello, 446 So.2d at 303. Where agency laws are silent, it is the function of the LAPA to fill in the gaps and to provide rules of procedure. See Liberty Mutual Insurance Company v. Louisiana Insurance Rating Commission, 96-0793 (La.App. 1 Cir. 2/14/97), 696 So.2d 1021, 1027, writs denied, 97-2069, 97-2062 (La.12/19/97), 706 So.2d 451, 452. When the agency statute upon which a litigant relies establishes a specific procedure for judicial review of the agency's action, a litigant may invoke the reviewing court's jurisdiction only by following the statutorily prescribed procedure, unless there can be found within the act a genuine legislative intent to authorize judicial review by other means. Corbello v. Sutton, 446 So.2d at 302-303. See also Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 202 (La.1987) (on rehearing).

In accordance with these principles, we must first look to the statutory provisions governing the Board to determine the extent to which the LAPA applies in this case. The provisions of the Gaming Law which address appeals from actions taken by the Board relating to riverboat gaming activities are La. R.S. 27:26 and La. R.S. 27:89, which provide:

§ 26. Appeals from board

All appeals from any decision of the board shall be filed within ten days of notice of the decision in the Nineteenth Judicial District Court and shall be reviewed solely on the record. [Emphasis added.]

§ 89. Appeals from actions of the commission

Any person adversely affected by an action, order, or decision of the commission 6

may appeal to the Nineteenth Judicial District Court in accordance with the provisions of the Administrative Procedure Act, except that notice of appeal shall be given to the commission and petition for appeal shall be filed with the district court within ten days of the action, order, or decision of the commission. [Emphasis added.]

A simple reading of these statutes reveals that virtually no legal structure or guidance is provided to this or any other court to consider the various procedural issues necessary for a comprehensive review of the Board's determinations. Under the literal terms of either La. R.S. 27:26 or La. R.S. 27:89, any person, at any point in the administrative process could appeal any decision of the Board. Further, these statutes allow for an appeal from any action, order, or decision of the Board. This unqualified use of the term "decision," without a requirement of finality,7 would allow for appeals to be taken at any step in the administrative process, resulting in piecemeal appeals and an undue burden on the courts. Applied as written, La. R.S. 27:26 or La. R.S. 27:89 clearly violate the well-recognized administrative law concept of exhaustion of administrative remedies prior to judicial review. See Daily Advertiser v. Trans-La., a Division of Atmos Energy Corporation, 612 So.2d 7, 28-31 (La.1993). Such an...

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