Thomas v. Department of Corrections

• Decision Date: 05 April 1983
• Docket Number: No. 82,82
• Citation: 430 So.2d 1153
• Parties: Perry THOMAS v. DEPARTMENT OF CORRECTIONS, L.T.I. In Monroe. CA 0542.
• Court: Court of Appeal of Louisiana — District of US

Page 1153

430 So.2d 1153

Perry THOMAS v. DEPARTMENT OF CORRECTIONS, L.T.I. In Monroe.

No. 82 CA 0542.

Court of Appeal of Louisiana First Circuit.

April 5, 1983.

Writ Denied June 10, 1983.

Mary E. Howell, Howell & Bayer, New Orleans, for appellant.

Annette R. Seng, Asst. Atty. Gen., Dept. of Justice, Baton Rouge, for appellee.

Robert R. Boland, Jr., Civil Service Legal Counsel, Dept. of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept. of State Civil Service.

Before COVINGTON, LANIER and ALFORD, JJ.

LANIER, Judge.

This is an appeal from a decision of the State Civil Service Commission (Commission) which affirmed the action of the Department of Corrections terminating a classified employee.

TIMELINESS OF MOTION TO DISMISS APPEAL

A motion to dismiss this appeal on the ground that it was not timely was filed with this court on February 10, 1983. On February 11, 1983, this court heard oral argument by counsel for the employee and the case was submitted for a decision. ¹ On February 16, 1983, the employee filed an opposition to the motion to dismiss the appeal on the ground that it was untimely.

An application for an appeal to this court must be timely filed for this court to have appellate jurisdiction over the case. La.C.C.P. art. 2088; Guilliot v. City of Kenner, 326 So.2d 359 (La.1976); Vitrano v Vitrano, 353 So.2d 398 (La.App. 4th Cir.1977), writ not considered 354 So.2d 1046 (La.1978). If the time fixed by law for appealing has elapsed, the ruling in question becomes final and is res judicata. La.C.C. arts. 3556(31) and 2286. As in the case of any other appeals, the timely filing of a request for appeal in administrative determinations is jurisdictional. Acosta v. Department of Health and Human Resources, South Louisiana Medical Center, 423 So.2d 104 (La.App. 1st Cir.1982); Baloney v. DHHR, Office of Family Services, 364 So.2d 203 (La.App. 1st Cir.1978). An appellate court can dismiss an appeal at anytime for lack of jurisdiction. La.C.C.P. art. 2162; Anderson v. City of Baton Rouge, 381 So.2d 842 (La.App. 1st Cir.1980); Booker v. Waguespack, 331 So.2d 110 (La.App. 1st Cir.1976); cf. Piper v. Olinde Hardware & Supply Company, Inc., 288 So.2d 626 (La.1974).

The motion to dismiss the appeal was timely filed.

TIMELINESS OF APPEAL

The following dates are pertinent for deciding this motion to dismiss:

(1) April 23, 1982--the decision of the Commission became final; ²

(2) May 22, 1982--the employee's application for appeal is postmarked by the U.S. Postal Service;

(3) May 24, 1982--the employee's application for appeal is received and stamped by the Commission.

At the time that this appeal was taken, ³ Article X, § 12, of the Louisiana Constitution of 1974 provided, in pertinent part, as follows:

"... The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final." (Emphasis added).

The history of a constitutional provision and the record of the debates on it at the constitutional convention may be valuable aids in determining the purpose, intent and meaning of the provision. New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402, 407 (La.1982). Article XIV, § 15(O)(1), of the Louisiana Constitution of 1921 provided, in pertinent part, as follows:

"... The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission's decision becomes final. The Supreme Court shall promulgate rules of procedure to be followed in the taking and lodging of such appeals." (Emphasis added).

Effective July 1, 1960, the appellate jurisdiction and rulemaking powers affecting appeals from the Commission were transferred from the Louisiana Supreme Court to the Courts of Appeal. Act 561 of 1958; Bowie v. Department of Police, 324 So.2d 813 (La.1975). At the Louisiana Constitutional Convention of 1973, Committee Proposal No. 9 submitted by the Committee on Education and Welfare making provision for State and City Civil Service in § 1(K) provided for appeals from the Commission to the Court of Appeal, as follows:

"... The rulings of the commission are subject to review in the court of appeal wherein each commission is located."

Vol. II, Records of the Louisiana Constitutional Convention of 1973: Journal and Calendar, p. 913, December 6, 1973. This language was changed by a floor amendment to read as follows:

"... The decision of a commission shall be final on the facts, but shall be subject to review on any question of law upon appeal to the court of appeal wherein such commission is located, upon application filed with such commission within thirty calendar days after its decision becomes final."

Vol. II, Records of the Louisiana Constitutional Convention of 1973; Journal and Calendar, p. 924, December 7, 1973, and p. 928, December 8, 1973. This amended proposal was itself amended to provide that the appellate review by the Court of Appeal would be on the facts as well as the law. Vol. II, p. 949, December 12, 1973. There were no other amendments to this provision and a review of the convention transcripts indicates that the meaning of the language applicable in this case was not discussed. Vol. II, Records of the Louisiana Constitutional Convention of 1973; Journal and Calendar, pp. 923-963, December 7, 11, 12 and 13, 1973; Vol. IX, Records of the Louisiana Constitutional Convention of 1973; Convention Transcripts, pp. 2633-2768, December 7, 8, 11, 12 and 13, 1973. ⁴

To determine if this appeal is timely, we must determine the meaning of the phrase "filed with the commission within thirty calendar days". Constitutional provisions are interpreted by the same rules as are other laws. Barnett v. Develle, 289 So.2d 129 (La.1974). The words of a law are to be understood according to the common and approved usage of the language. La.R.S. 1:3; La.C.C. art. 14; State v. Brady, 310 So.2d 593 (La.1975). When a constitutional provision is clear and unambiguous, its language must be given effect. La.R.S. 1:4; La.C.C. art. 13; Bank of New Orleans and Trust Company v. Seavey, 383 So.2d 354 (La.1980).

In Reilly-Benton Company, Inc. v. Liberty Mutual Insurance Company, 278 So.2d 24, 28 (La.1973), the phrase "filed with the Company" was defined as follows:

"Plaintiff contends that 'filed' can and does include depositing in the mail.

"There is no ambiguity in the words 'reported' and 'filed' as used in the monthly reporting policy. The obvious and simple meanings found in Webster's New International Dictionary, Second-Edition, should suffice. 'Report' or 'reported' there is defined as 'to give notification of.' File means 'to deliver to the proper officer so that it is received by him to be kept on file among the records of his office.' Supporting this common sense definition of 'file' is the case of McGee v. So. Farm Bureau Casualty Ins. Co., 125 So.2d 787 (La.App. 3rd Cir.1960), which declared that 'filed' means delivered into actual custody. See also State ex rel. Denny v. Members of Caddo Parish, etc., 201 La. 483, 9 So.2d 657 (1942). The obvious import of the words 'reported' or 'filed' is that the intended recipient of the document to be 'filed' or 'reported' actually receive the document. One does not report until the recipient receives 'notification' of the report; one has not filed until the recipient has received custody of the document.

"Thus, we conclude that the words 'reported' and 'filed' mean transmitted to, and delivered unto, the insurer, both by simple definition and in the necessary context in which such words are used in this 'monthly reporting policy.' Depositing in the mail prior to the loss does not constitute reporting to, or filing with the insured prior to the loss. Consequently, defendant properly used the February report, and there being an undervaluation of merchandise in this report, properly imposed the penalty provision of Paragraph III C." (Underscoring added).

In Lambert v. Kelley, 270 So.2d 532, 534-535 (La.1972), the evidence showed that a motion for a new trial was deposited with the clerk of court on February 10, 1970, but was not marked filed until February 11, 1970. The court determined that the act of depositing the document with the clerk of court is the filing and defined that term as follows:

"... the delivery of a document to the proper office to be kept on file, placing a paper in the proper official's custody by the party charged with such duty, presenting a paper at the proper office and leaving it there, and bringing the paper and depositing it with the officer for keeping."

In Box v. Athena, Inc., 312 So.2d 176, 178 (La.App. 1st Cir.1975), this court interpreted the phrase "filed in this court", as follows:

"... The depositing of an application for a writ in the mail does not constitute a filing 'in this court' as provided for by our Rule XII, Section 2, supra. The words 'filed in this court' are easily understood words and it would be a strange construction of those simple words to suppose that a filing in this court is constituted when the instrument is deposited in the United States mail. Elsewhere our rules do provide that in the case when briefs (Rule IX, Section 9) or applications for rehearing (Rule XI, Section 2) are sent through the mail, the filing shall be timely when the postmark shows that the document was marked on or before the due date. We see no reason why a different rule should obtain for the filing of writs, but the simple fact remains that the rule does not so provide. Thus, if Relator chooses the mail as a means of transmitting its application for writs to this court, the duty was on Relator...