Plaquemines Parish Commission Council v. Perez

• Decision Date: 24 January 1980
• Docket Number: No. 66274,66274
• Citation: 379 So.2d 1373
• Parties: PLAQUEMINES PARISH COMMISSION COUNCIL and Chalin O. Perez v. Leander H. PEREZ, Jr., District Attorney.
• Court: Louisiana Supreme Court

Page 1373

379 So.2d 1373

PLAQUEMINES PARISH COMMISSION COUNCIL and Chalin O. Perez v. Leander H. PEREZ, Jr., District Attorney.

No. 66274.

Supreme Court of Louisiana.

Jan. 24, 1980.

Rehearing Denied March 3, 1980.

Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for defendant-applicant.

J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for plaintiff-respondent.

Abbott J. Reeves, Gretna, Director, Research and Appeals 24th Judicial Dist. Court, amicus curiae for Louisiana Dist. Attys. Ass'n.

DIXON, Justice.

Plaintiffs in this case are the Plaquemines Parish Commission Council, which constitutes the governing body of that parish, and the council's president, Chalin O. Perez, brother of defendant district attorney. In July of 1979, plaintiffs learned (according to their petition) of the theft of more than $200,000 of public funds by Michael M. Chauppette, a council employee whose official duties included the keeping of some public records. Chauppette is not a party to this suit. The theft was accomplished by the use of forged checks drawn against the council's account with the Delta Bank and Trust Company. Plaintiffs informed the district attorney of the theft and then, because the district attorney "did substantially nothing," executed affidavits before a justice of the peace, charging Chauppette with the offense. In August, 1979, a special grand jury was convened by the defendant district attorney. ¹

In this suit plaintiffs seek to compel the recusation of the district attorney and to enjoin him from taking any action with respect to the investigation of the theft by Chauppette and the investigation of the Plaquemines Parish Commission Council and its officials and employees "in conjunction with the Special Grand Jury in current session." The defendant district attorney filed exceptions of unconstitutionality, lack of subject matter jurisdiction and no right or cause of action, all of which were overruled by the trial court. Writs were granted to review the ruling on these exceptions.

Provisions for Recusal

Recusation of a district attorney, the action which plaintiffs have petitioned the district court to take, is provided for by C.Cr.P. 680, which states:

"A district attorney shall be recused when he:

(1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice;

(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, to such an extent that it may appreciably influence him in the performance of the duties of his office; or

(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney."

The relative uniqueness of Louisiana's provision for mandatory recusation of a district attorney is reflected by the fact that a 1960 survey of ten states ² selected at random from among those jurisdictions with the most up-to-date procedures revealed that only one of those states, Missouri, provided by statute for recusation of a district attorney; in that state, however, recusation was discretionary with the trial judge, not mandatory. Pugh and Pugh, The Work of the Louisiana Supreme Court for the 1958-1959 Term, 20 La.L.Rev. 201, 321 (1960). In most jurisdictions, disqualification of a prosecuting attorney is governed by those general principles of professional ethics which relate to the protection of confidentiality and the prohibition against the representation of conflicting interests. Griffin, Annotation, Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R.3d 953 (1970).

The right to challenge the competency of an official conducting a trial appears to be rooted in the civil law: the Codex of Justinian provided for the recusation of a judge in order that litigation might proceed without suspicion, while the Siete Partidas of Spain contained broad provisions for recusing a judge on the grounds of fear, suspicion, and personal hostility. Putnam, Recusation, 9 Corn.L.Q. 1 (1923). The remedy of recusation entered the United States with the purchase of Louisiana. Putnam, supra; Slovenko, Je Recuse!, 19 La.L.Rev. 644, 650 (1959). The Louisiana Code of Practice of 1825, article 338, provided four grounds for the recusation of a judge in civil cases. Act 303 of 1858 extended the remedy of recusation to those criminal cases in which a judge was related to a person charged with a criminal offense. In 1877, Act No. 35, the legislature amended § 1067 of the Revised Statutes of 1870, which contained the grounds for recusation of a judge, to provide for recusation of a district attorney on similar grounds.

The grounds for recusation of a district attorney established by the legislature in 1877 were his relationship, within certain specified degrees, to the party accused or party injured, and his prior employment or consultation by the accused. In promulgating the Code of Criminal Procedure in 1928, the legislature included an additional ground in Article 310, the section which provided for recusation of a district attorney: "if said district attorney shall have a personal interest adverse to the prosecution." In State v. Tate, 185 La. 1006, 171 So. 108 (1936), this court construed "a personal interest adverse to the prosecution" to include any interest on the part of the district attorney which was adverse to the state's interest in impartial justice. It therefore found that the trial court should have granted defendant's motion to recuse a district attorney who had been retained as counsel by plaintiffs in civil suits against defendant arising from the incident which also gave rise to the criminal charges. The court observed:

"The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. . . . Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused's trial fairly and impartially." 185 La. at 1019-1020, 171 So. at 112.

Article 680 of the Code of Criminal Procedure of 1967 codifies this view of the state's interest in prosecution by providing for recusation of a district attorney when he "(h)as a personal interest in the cause which is in conflict with fair and impartial administration of justice." ³

It should be noted that recusation is not the sole method provided by Louisiana law for circumscribing a district attorney's exercise of his authority. Article 4, § 8 of the Constitution empowers the attorney general, for cause and with the trial court's authorization, to institute, prosecute, or intervene in any criminal action or proceeding, or to supersede the district attorney in any civil or criminal action. The "cause" requirement refers to a showing that the district attorney is not adequately asserting some right or interest of the state. Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 835 (1977). Article 10, § 25 of the Constitution and R.S. 42:1411-1412 empower the attorney general to institute suit for removal of a district attorney who is convicted of a felony while in office. District attorneys are also among those officials who may be impeached by the legislature for commission or conviction of a felony or for malfeasance or gross misconduct while in office, under Article 10, § 24 of the Constitution, or whose recall may be effected by an election ordered by the governor pursuant to a petition from the electorate, under Article 10, § 26 of the Constitution and R.S. 42:341 et seq. Among these methods, however, only recusation provides a means for protecting a particular defendant against prosecutorial bias.

Plea of Unconstitutionality

District Attorney Perez's plea of unconstitutionality rests, first, on the contention that C.Cr.P. 680 constitutes a legislative restriction, enacted without constitutional authorization, of the plenary powers granted to district attorneys by Article 5, § 26 of the Constitution, which provides:

"(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."

It is true that the other methods of limiting the prosecutor's powers, i. e. intervention or supersession by the attorney general, impeachment, removal, and recall, are specifically provided by the Constitution, while there is no specific constitutional provision for recusation. It is also true, however, that Article 1, § 2 of the Constitution provides that "no person shall be deprived of life, liberty, or property, except by due process of law," and that this court has defined the essence of due process as "protection from arbitrary and unreasonable action." Babineaux v. Judiciary Commission, 341 So.2d 396, 400 (La.1976). Due process is also defined by the Constitution itself to require impartiality. Article 1, § 22 provides:

"All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."

We find, therefore, that C.Cr.P. 680's provision for recusation is not only provided for but required by the constitutional guarantee of the fair and impartial administration of justice.

District Attorney Perez also contends that article 680 may not constitutionally provide for a district attorney's recusation from investigatory proceedings in which he is acting as legal...