Perez v. Licciardi
| Decision Date | 15 December 1958 |
| Docket Number | No. 44200,44200 |
| Citation | 236 La. 236,107 So.2d 455 |
| Parties | Leander H. PEREZ, District Attorney, v. James LICCIARDI and Celestine Melerine. |
| Court | Louisiana Supreme Court |
John P. Dowling, F. Irvin Dymond, New Orleans, for defendants.
L. H. Perez, Dist. Atty., Rudolph M. McBride, 1st Asst. Dist. Atty., Leander H. Perez, Jr., 2nd Asst. Dist. Atty., New Orleans, for respondents.
This case comes before us on alternative writs of certiorari, prohibition, and mandamus to determine the validity of suspension proceedings initiated against relators in the 25th Judicial District Court for the Parish of St. Bernard.
Relators, Celestine Melerine and James Licciardi, are presently President and Vice-President, respectively, of the St. Bernard Parish Police Jury.
On June 21, 1958, both Melerine and Licciardi were charged with and convicted of criminal malfeasance in office and these convictions are presently pending before us on appeal.
On April 15, 1958, during the pendency of the criminal trial, the District Attorney for the Parish of St. Bernard, respondent herein, instituted ouster proceedings in the District Court to remove relators from office under the provisions of Section 7 of Article 9 of our Constitution, 1 LSA. After the overruling of certain preliminary exceptions and pleas, relators filed answer on June 6 and therein prayed for a trial by jury. The District Judge denied relators' request whereupon defendants moved for and obtained a suspensive appeal returnable to the Court of Appeal, Orleans Court, where the matter is presently pending.
During the interim in which the District Judge had under advisement the right of relators to a suspensive appeal, the District Attorney, acting under authority of the second paragraph of Section 7, Article 9 of the Constitution filed with and was granted a motion by the judge for a rule Nisi ordering relators to show cause on July 17, 1958 why they should not be suspended from their respective offices. On the return date of said rule relators filed a plea to the jurisdiction of the Court ratione materiae, and, with full reservations of said plea, moved for a trial of the rule by jury. On the same day after hearing, both the exception and the motion were overruled. From this ruling, relators moved for a suspensive appeal which was denied. Relators then applied to the Court of Appeal, Orleans Circuit, for remedial writs which were likewise denied. Whereupon, writs to this Court were sought and granted under our supervisory power over all inferior courts of the state as provided in Section 10, Article 7 of the Louisiana Constitution of 1921.
Relators have not seriously pressed their claim before this Court to the right to a trial by jury of the suspension proceedings. Suffice it to say in this connection that the summary nature of the suspension proceeding, through rule nisi and contradictory hearing, necessarily requires this proceeding to be heard before the trial judge without a jury. Code of Practice, Arts. 755, 756; Prudhomme's Heirs v. Walmsley, Man.Unrep.Cas. 374; Pesant v. Heartt, 22 La.Ann. 292.
Relators have focused their argument both orally and in their subsequently-filed brief on the property of the trial court's hearing the merits of the suspension proceeding. They advance two contentions why the trial court should not be allowed to proceed any further in the suspension matter. First, they contend that the District Court has lost jurisdiction on the entire matter through the perfection of a suspensive appeal to the Court of Appeal on the interlocutory decree of the District Court denying relators a trial by jury of the ouster action. Second, they suggest that Section 7 of Article 9 of the Constitution is ambiguous in its result, if not in its wording.
The basis of relators' first contention is Art. 575 of the Code of Practice which provides that the perfection of a suspensive appeal 'shall stay execution and all further proceedings, until definitive judgment be rendered on the appeal.' This is a general provision and would be applicable if not superseded by a more direct provision specifically relating to suspension proceedings. We need look no further than Article 9, Section 7 of the Louisiana Constitution which sets forth, as previously observed, that:
'* * * No suit for removal shall work a suspension...
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State v. Melerine
...when requested in writing by twenty-five citizens and taxpayers, and that the record in these removal cases (referring to Perez v. Licciardi, 236 La. 236, 107 So.2d 455, in which this Court acted upon an application for writs) show that more than the necessary amount of citizens and taxpaye......
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State v. Melerine
...when requested in writing by twenty-five citizens and taxpayers, and that the record in these removal cases (referring to Perez v. Licciardi, 236 La. 236, 107 So.2d 455, in which this Court acted upon an application for writs) show that more than the necessary amount of citizens and taxpaye......
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State ex rel. McKeithen v. Ourso
...one case where the issue of defendant's right to trial by jury has been subject to appellate review and that case is Perez v. Licciardi, 236 La. 236, 107 So.2d 455 (1958). The cited case is clearly distinguishable from the facts presented in the instant matter in that the Perez case as it w......