162 So.2d 565

#### STATE of Louisiana v. OPEN HEARING INVESTIGATION.

No. 47220.

April 8, 1964.

*1064PER CURIAM.

The district attorney is charged with the duty of prosecuting all persons committing crimes within the jurisdiction of the court' of which he is an officer, and also with the duty of protecting the lives, property reputation, and character of all lawabiding citizens. In discharge of his duty he seeks to invoke the provisions of Articles 17.1 and 156 of the Code of Criminal Procedure, LSA-R.S. 15:17.1, 15:156, to obtain facts and to ascertain the identity of the person or persons committing specific crimes which he alleges he has been informed have been actually committed, so that he may institute legal charges and valid criminal prosecutions if the facts so justify. The district attorney’s efforts to invoke the statutes have' been interrupted and stayed in more than one instance by applicants to this court for writs to halt or stop the proceedings, the applicants contending that their legal and constitutional rights will be violated; all of these applications have been denied.

 For the orderly and proper administration of justice to all, this court is of the vjew that the provisions of the statutes are available to the district attorney, and that the hearing provoked thereunder should proceed unless some legal and justified cause for interruption is shown. However, when the provisions of the statutes are invoked, the legal and constitutional rights of all persons are to be respected by the State, and must be protected by the court. In view of these facts and due to the great public interest, we are rendering this per curiam opinion for the guidance of all parties at interest, since the Legislature has not seen fit to prescribe any procedure or method for the taking of the depositions.

(1) To obtain an order for the hearing a district attorney must allege in his application, to the satisfaction of the judge, that he has been informed that a specific and named crime has been actually committed within the jurisdiction of the court, and that prosecution is not barred by the statute of limitation.1 At the hearing the *1066district attorney must be given reasonable time and opportunity to establish the commission of such crime and that prosecution is not barred, and upon his failure to do so, the hearing must be terminated.

(2) All witnesses summoned to appear at the hearing shall have the right to counsel, who may be present at the hearing solely for the purpose of advising their clients of constitutional and legal rights, which of course, among other things, include the right not to give self-incriminating evidence or disclose privileged communications.

(3) The presiding judge shall not permit any witness to give hearsay testimony, nor shall he permit the introduction of evidence that is remote, irrelevant, and not pertinent, or permit the introduction of any evidence not legally admissible to prove and establish the crime or crimes alleged to have been committed.

(4) The Constitution of this state LSA-Const. art. 1, § 6, provides that all courts shall be open, that every person for injury done him to his reputation shall have adequate remedy by due process of law and justice administered without denial, partiality, or unreasonable delay, and that an accused in every instance shall have the right to be confronted with the witnesses against him. Consequently, if testimony or evidence is adduced at said hearing showing the commission by a named person of the crime or offense being investigated, then such person shall have the right to be heard, may appear with counsel, and shall have the right to testify under oath, recall witnesses for cross-examination, and have compulsory process for obtaining witnesses in his favor.

In the instant proceeding the district attorney may amend his application for the hearing to allege the facts set forth in Paragraph No. (1), and is to be given a reasonable time and opportunity to prove and establish such allegations.

The district attorney or any other person denied any of the rights above enumerated may invoke relief under the supervisory jurisdiction of this court.

In this application for writs relator seeks to have this court declare the statutes here involved unconstitutional on the ground that they require a judge of the Criminal District Court for the Parish of Orleans to perform functions which are not judicial — that is, beyond the powers vested in him by the Constitution. This contention was fully answered by this court in State ex rel. Pleasant et al. v. Baker, 133 La. 919, 63 So. 403. Relator seeks to have this court overrule the holding in the Baker case, but his application, in our opinion, does not set forth any valid reason why we should do so.

Applicant further seeks to have this court order the open hearing now in *1068progress to “be closed and constricted to the private confines of the court and that only the judge presiding therein, the district attorney and/or his assistants and the witnesses called allowed therein and the court stenographer”.

In support of this contention applicant assails the motives of the district attorney, stating that however much a public hearing may enhance the latter’s public prestige, the same result which the district attorney seeks to accomplish can be accomplished by the use and power of the grand jury.

While it is true that the same result can be accomplished by the use of the grand jury, this in itself furnishes no reason for this court to condemn the action of the district attorney or his motives in proceeding under the authority of the statutes — for the statutes vest in him the power thus to proceed.

If the use of the statutes is subject to abuse due to ulterior motives by any district attorney, then this is a matter which addresses itself to the legislative and not to the judicial branch.

For the foregoing reasons the application for remedial writs is denied.

FOURNET, C. J., dissents from the majority ruling in this matter with written reasons.

SUMMERS, J., is of the opinion that the writs should be granted. (See reasons assigned.)

1

. Act 25 of 1960, LSA-R.S. 15:7.1-15:7.13.

FOURNET, Chief Justice

(dissenting from the refusal to grant a writ).

It is clear from a mere reading of R.S. IS :156 that this statute confers on a district attorney only the authority *to take depositions*before a judge or justice of the peace from persons he has reason to believe may have some knowledge of a crime that has been actually committed when a complaint with respect thereto has not been made to such public officers. There is not a single provision, phrase, or word in the statute itself' — which is plainly written in simple language understandable to the ordinary person — from which it can be logically deduced a so-called “open hearing” such as is being conducted by the district attorney in an unbridled, unhampered, and unrestrained manner is authorized by R.S. 15:156.

The majority, in so ruling, has put words in the statute that do not exist in fact and has, in effect, not only rewritten R.S. 15 :156, but has arrogated to itself the prerogatives of the legislature in doing so. Moreover, the per curiam this day handed down in connection with the refusal of these writs by the majority is, in my opinion, nothing more than an “advisory opinion” that adopts a code of procedure governing the conduct of such “hearings,” and, actually, an admission that this so-called hearing as conducted up to this time has been a gross and unlimited abuse of the judicial process and an unconstitutional invasion of the rights *1070■of private citizens that should have long since been terminated by this court.

However reprehensible the crimes of ■malfeasance in office, public bribery, corrupt influencing, and/or conspiracy to commit such offenses may be, and however laudable the effort of the district attorney in his zeal to ferret out and punish those guilty of them, it is my opinion that the injury that cannot but result from this unauthorized, unwarranted, and dangerous procedure will produce damaging and far-reaching results that will far outweigh any good that may be derived from such a hearing.

It may be well to note that:

> 1. Not one scintilla of credible evidence has been produced to show that any of the alleged crimes have been committed in Orleans Parish, or anywhere else for that matter.

> 2. The only evidence adduced is the testimony of a convict brought here from the state penitentiary to give hear-say evidence to the effect that rumors exist among the inmates of the penitentiary indicating a parole may be bought for a certain price when certain attorneys and members of the legislature — whose names are boldly proclaimed and published throughout all news media — are employed by a convict to secure it.

> 3. The members of the parole board have been subjected to harassment by questions that are suggestive, insinuating, and full of innuendoes intended to leave the impression they are actually guilty of some kind of crime or crimes. Such evidence could not be admitted in the trial of any case in any court of justice in the land, either civil or criminal.

> 4.To add to this disgraceful spectacle, I note by the news media the Governor of Louisiana has been subpoenaed as a witness.

It would seem to me that if the district attorney actually has, or felt he had, any information whatsoever that a crime has been committed in Orleans Parish, he should have at least SOME CREDIBLE EVIDENCE to support that belief, and that he would have first produced it to establish Orleans Parish as the legal jurisdiction in which to engage in such a “fishing expedition” before allowing the character of the individuals involved to be destroyed by such rumors, innuendoes, and completely unreliable hear-say evidence.

SUMMERS, Justice, is of the opinion that the writs should be granted.

The authority under which the State’s attorney has provoked these proceedings is Article 17.1 of the Code of Criminal Procedure. That legislative enactment provides :

> “The attorney-general or any district attorney when informed that a crime *1072or misdemeanor has been committed and that no complaint or declaration thereof has been made before any judge or justice of the peace shall inquire ex officio into the fact by causing all persons believed to have some knowledge of the fact to be summoned before a judge or justice of the peace, that their depositions may be taken.”

Although I am of the opinion that the district attorney has the authority and, in fact, the duty to inquire into the commission of crimes and misdemeanors by summoning all persons believed to have knowledge thereof before a judge or justice of the peace that their depositions may be taken, it is my opinion that the “open hearing” being conducted is not countenanced by this authority.

As I view the legislative mandate, the purpose of the legislation is to assist the district attorney in ascertaining the validity of the information which he has received that a crime has been committed.

The law by Article 17.1 grants to the district attorney the power of subpoena, which he would not otherwise have except by provoking a session of the grand jury. The jurisprudence of this State has recognized that Article 17.1 is designed to afford the district attorney the same facility for compulsory process available in grand jury proceedings. Grand jury proceedings, of course, are secret, and no detriment to the district attorney’s proper objective can result by adhering to the clear intent and unmistakable language of Article 17.1 and confining these proceedings to the presence of a judge or justice of the peace as the-case may be.

The taking of depositions authorized by Article 17.1 cannot be assimilated to hearings held in connection with congressional investigations and the State’s reliance upon such a remote and inappropriate comparison to sustain its position that there should be an “open hearing” emphasizes the weakness of its position in legal contemplation.

Furthermore, the majority 'in refusing the writs herein, has, through the vehicle of a per curiam opinion, sought to supply the deficiencies of Article 17.1 by what is, in my opinion, judicial legislation. The stated objective of the majority is to provide “(F) or the orderly and proper administration of justice to all * * The-orderly and proper administration of justice requires that this court *not*usurp the-prerogative of the legislature, which it does, by permitting this “open hearing” contrary to the legislative mandate which authorizes, an “inquiry” by “deposition” before a “judge”. Supposed “public interest” under which the majority seeks to justify its action can never serve as a basis for abandoning constitutional safeguards. It is the very essence of judicial function that it not be swayed by public clamor.