FOR IMMEDIATE NEWS RELEASE NEWS R ELEASE #4 9
F ROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinion(s) handed down on the 19 th day of November, 2019, are as follows:

B Y WEIMER, J.: 2019- K A -00568 c/w 2019-K A -00569 S TATE OF LOUISIANA VS. VAL ENTINO RO MAN HODGE ( P arish of Sabine)

This case is before the court on direct appeal from a district court ruling declaring unconstitutional the jury verdict regime found in La. Const. art. I, § 17 and La. C.Cr.P. art. 782, which allow for verdicts on a vote of ten of twelve jurors for felonies committed before January 1, 2019. The district court committed the following two interrelated errors: (i) creating, on that court’s own initiative ( sua sponte ), a constitutional challenge to statutor y law and to provisions of the Louisiana Constitution and (ii) striking down the jury verdict regime as unconstitutional on the basis of an earlier, nonbinding district court holding. Based
on these errors, this court vacates the district court’s ruling and remands for further proceedings. VACATED AND REMANDED. Chief Judge S usan M. Chehardy of t he C ourt of A ppeal, Fifth Circuit, appointed as Justice pr o te mpore, s itting f or the va cancy in the First District.
R etired J udge James B oddie appointed Justice ad hoc, sitting for Clark, J. Johnson, C.J., dissents and assigns reasons.1 1 / 1 9 / 2 0 19 

### SUPREM E CO URT O F LO UISIANA

NO. 2 0 1 9 -KA-0 5 6 8 c/ w 2 0 1 9 -KA-0 56 9
STATE OF LOUI SI A NA
VERSUS
VALENTI NO RAMON HODGE

ON APPEAL FROM THE 11 T H JUDICIAL DISTRICT COURT, PARISH OF SABINE

W EI MER , J u st i ce. 1

Th i s cas e i s b efo re t h e co u rt o n d i rect ap p eal fro m a d i s t ri ct co u rt ru l i n g
d ecl ari ng u n co n s t i t u t i o n al t h e ju ry v erd i ct reg i m e fo u nd i n La. Co n s t

. art

. I, § 1 7 an d

La. C.Cr.P. art

. 7 8 2 , wh i ch al l ow fo r v erd i ct s o n a v o t e o f t en o f t wel v e j u ro rs fo r
fel o n i es co m

m i tt ed b efo re J an u ary 1 , 20 1 9

. Th e d i s t ri ct co u rt co m m i t t ed t h e
fo l l o w i n g t wo i n t e r r e l at ed erro rs : (i ) creat i n g , o n t h at co u rt ’ s o wn i n i t i at i v e ( su a

s p o n te ), a co n s t i t u t i on al ch al len g e t o s t at u t o ry l aw an d t o p ro v is i o n s of t h e Lo u i s i an a
Co n s t i t u t i o n an d (i i ) s t ri k in g do wn t h e j u ry v erd i ct reg i m e as u n co n s t i tu t i o n al o n t h e
b as i s o f an earl ier, n o n bi nd i n g di s t ri ct co u rt h o l d i n g. Bas ed o n t h es e erro rs , t h i s co u rt

v acat es t h e d i st ri ct co u rt ’ s ru li n g an d rem an d s fo r fu rt h er p ro ceed i n g s
.

BACKGROUND AND PROCEDURAL HI STORY

1 Chief J udg e Susan M. Chehardy o f t h e Court of Appeal, F ifth Circuit, assig ned as J ustice p ro tempore , sitting for the vacancy in the F irst D istrict; Retired J u dg e J ames B oddie J r., appoi nted J ustice a d hoc , sitting for J ustice Clark.By s ep arat e b i l l s o f i nfo rm at i on , t h e d efen dan t was ch arg ed wi th o n e co u nt o f

d o m es t ic ab u se b at t ery b y s tran g u l at i o n i n t h e p res en ce o f a m i no r i n v i ol at io n o f La.
R.S. 14 : 3 5 .3 (B)(7 ),(I) an d wi t h o n e co u n t o f p o s s es s i o n o f a fi rearm b y a co n v i ct ed
fel o n i n v i o l at i o n of La. R.S. 1 4: 9 5 .1

. Th es e al l eg ed fel on y cri m es b o th o ccu rred o n
Decem b er 5 , 2 0 1 6.
Th e d efen d an t p l ead ed n o t g u i l t y , an d th e ch arg es w ere sl at ed fo r a ju ry t ri al

. 2
Owi n g i n l arg e m eas u re t o th e defen d an t ’ s v aci l l at io n b et ween b ei n g rep res en t ed by

ap p oi n t ed co u ns el an d s eek in g ret ai n ed co un s el , t h e t ri al d at e was co nt i n u ed s ev eral

t i m es
. On J an u ary 2 4 , 2 01 9 , t h e s t a t e f i l e d a m o t i o n i n l i mi n e s eek i n g t o h av e t h e
d i s t ri ct co u rt d ecl are th at t h e d efen d an t w o u l d b e t ri ed b y a ju ry co m po s ed o f t wel v e ju ro rs , t en o f w h om m

u s t co n cu r t o ren d er a v erd i ct

. Th e n ex t d ay , w i th o u t a h eari n g,

t h e d i st ri ct co u rt s i g n ed an o rd er d en y i n g t he s t at e’ s m o t i o n i n l i mi n e an d d ecl ari n g

t h at t he d efen dan t is en t i t l e d t o a un an i m o u s ju ry verd i ct p urs u an t to t h e d i s t ri ct

co u rt ’ s o wn earl i er ru li n g i n Sta te v . Mel v i n Ca rtez Ma x i e , 1 1 t h J u d i ci al Di s t ri ct
Co u rt , No . 1 3 -CR-7 2 5 2 2 , ren d ered o n Oct o b er 1 1 , 2 0 1 8.

In Ma x i e , d eci d ed b y t h e s am e ju d g e, t h e d i s t ri ct co u r t r u l e d t h at t h e

n o n u n an i m o u s ju ry reg i m e ran afo u l o f th e f e d e r a l co n s t i tu t i o n ’ s Eq u al Pro t ect i o n
Cl au se. Th e s t at e ap p eal ed , b u t b efo re t h e reco rd was l od g ed i n th i s co u rt , t h e s t at e
d i s m i s s ed t h e ap peal , ap paren t l y t o o n ce ag ai n v es t t h e d i s t ri ct co u rt wi t h ju ri s d i ct i o n,
b as ed o n M r. M ax i e’ s i n t en t t o s u b m it a g u i l t y p l ea. 3

2 The charg es were g iven separate, consecutive d o cket numb ers in the district court. Althoug h apparently not formally consolidated, the cases p roceeded simul t a n e o u sly with p leading s and ruling s bearing both docket numbers. Similarly , the cases h ave been g iven separate docket numbers in this court; but f

or g rammatical simplicity , this op i n i on will refer to these two matters as a sing le case, and this court’s analy sis and determination apply to both district court cases.

3 Notably , any continued ef ficacy o f the holding of unconstitutionality in Maxie w ould create its
own challeng es because that ruling was appealed, but the defendant subsequently entered into a plea
2Th e s t at e ap p eal ed th e i ns t an t cas e, u rg i n g t h at t h i s co urt h as ju ri sd i ct i o n o v er

t h e d i st ri ct co urt ’ s d ecl arat i o n o f a s t at u te’ s u n co n s t i t u t i o n al i t y . See La. Co n s t

. art

. V, § 5 (D), q u o t ed i n

f r a
. DI SCUSSI ON
As a p rel i m i n ary m at t e r , t h i s co u rt is cal l ed o n t o ev al u at e th e very n at u re o f

t h e d i st ri ct co u rt ’ s ru l i ng b ecau s e t h e s t at e an d t h e d efen d an t d i ffer on it s pu rp o rt ed
effect

. Th e st at e arg ues t h e ru l i n g i s a d ecl arat i o n o f un co n s t i t u t io n al i t y , wh i ch in

s t rai g h t fo rward fas h i o n ren d ers t h e ru l i n g su s cep t ib l e o f a d i rect ap p eal t o t h i s co u rt

. Th e d efen d an t arg u es t h e ru li n g i s co n fi ned t o d en y in g t h e s t at e’ s m o t i o n i n l i mi n e

an d i n d i cat i n g t h e d efen dan t is en t i t l ed t o a u nan i m o us ju ry v erd i ct fo r ad ju d i cat i n g
h i s p o t en t i al g u i l t

. T h e aft er effect o f t h e d efen d an t ’ s arg u m en t i s th at a d i rect ap p eal

t o t h i s co u rt i s u n av ai l ab l e; an y ap p eal b y t h e s t at e m u s t b e t ak en t o t h e i n t erm ed i at e

co u rt o f ap p eal

. Th e d efen d an t ack n o wl ed ges , h o wev er, t h at ev en i f a d i rect ap p eal

t o t h i s co u rt i s d i s al l o wed , th i s co u rt h as d i s cret i on t o co nv ert t h e s t at e’ s ap p eal t o a

rev i ew u nd er t hi s co u rt ’ s s u p erv i s o ry ju ri s d i ct io n.
Th e p o s i t i o n o f t h e s t at e i s co rrect

. T h e d i s tri ct co u rt ’ s ru l in g p laces i t s p ri o r
d eci s i o n i n M a x i e as t h e u l t im at e au t h o ri ty o n th e n u m ber o f ju ro rs req u i red fo r a

g u i l t y v erd i ct , 4 n ot wi t h s t an d i n g t h at La. Co ns t

. ar t

. I, § 1 7 5 an d La. C.Cr.P. art

.

b a rg ain. One could reasonably question whether the defendant’s plea vitiated any claim o f unconstitutionality of the nonun a n i m o u s jury reg ime. However, g iven the r uling in this matter, which larg ely turns on this c ourt’s constitutional a uth o r i t y t o serve as the final authority on decla r at i o n s o f unconstitutionality , it is unnecessary to unravel the Gordian knot of procedural complex ity

in Maxie

.

4 T h e d istrict court’s ruling r ecites that “the D efendant is e ntitled to a unanimous jury verdict p u r s u a n t to this Court’s judg ment in State v. Melvin Cartez Maxie , Docket No. 13-CR-72522, decided and filed on October 11, 2018.”

5 I n pertinent part, L a. Const. art. I , § 17(A) provides:

A criminal case in w hich the p unishment may be capital shall b e tried before
a jury of twelve persons, all o f whom must concur to render a verdict. A case for an offense committed prior to J anuary 1, 2019, in which the p u nishment is necessarily
37 8 2 (A) 6 ex p l i ci t l y al l o w fo r g u i l ty v erd i ct s o n a v o t e o f t e n o f t wel v e ju ro rs fo r

fel o n i es co m

m i t t ed b efo re J an u ary 1 , 20 1 9

. By s u b o rd i nat i n g co n s t i t u t i o n al an d

s t at u to ry p ro v i s i o n s t o t h e d i s tri ct co u rt ’ s own ru l i n g in Ma x i e , t h e d i s t ri ct co u rt

es s en t i al l y ru l ed L o u i s i an a’ s c o n s ti t ut i o n al an d s t at ut o ry p ro v i s i o n s are

u n co n s t i tu t i on al i n referen ce t o t he fed eral co n st it u t i o n
. Di s p el li n g an y do u b t , t h e

o rd er of ap p eal n o t ab l y reci tes t h at t h e d i st ri ct co u rt ren d ered a “ d eci si o n t h at Art i cl e
1 , § 1 7 o f t h e Lo u i s i an a Co n s t i tu t i o n o f 19 7 4 an d A r t i c l e 78 2 i s faci al l y

u n co nstitutiona l, ” a nd “ th e St at e’ s M ot i o n fo r Ap p eal t o t h e Lo u i si an a Su p rem e Co u rt
i s GRANTED

. ” Th u s , t h e s t at e’ s d i rect ap p eal t o t h is co urt i s pro p er. See La. Co ns t

.
art . V, § 5 (D), q u ot ed i n

fr a
. Hav i n g det erm i n ed t h e di s t ri ct c o urt in d eed d ecl ared t h at La. Co ns t

. o f 1 9 7 4

art

. I, § 1 7 an d La. C.Cr.P. art

. 78 2 are un co ns t i t u t io n al , t h e n ex t s t ep i n t h e an al y s i s
i s g u i d e d by a c onside r a

ble h is t ory o f Lo u i s i an a ju ri s p ru d en ce p ro h ib i t i n g co urt s fro m

s u a s po n t e s t ri k i n g d own co n st i t u t i o n al an d st at ut o ry l aw. In Sta te v . Bo a rd o f Superv i s o rs , La
. Sta te Uni v . & Ag r. & Mecha ni ca l Co l l eg e , 2 28 La. 9 5 1 , 8 4 So .2 d

5 9 7 , 6 00 (1 9 5 5 ), t h i s co urt h el d t h at “ al l Act s o f t h e Le g i s lat u re are co n s t i t u t i o n al

u n t i l d ecl ared o t h erwi s e i n p ro c e e d in g s b ro u g h t co nt rad i ct o ri l y b et ween in t eres t ed

p ers o n s .” M o re recen tl y , th i s co u rt fo u n d t h e p ri n ci p l es p ro h i b i ti n g a co u rt fro m su a

s p o n te s t ri k i n g d o w n s t at u t o ry l aw al so p ro h i b it an y s u a s p o n te st ri k i n g d o wn

confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.

6 I n pertinent part, L a. C.Cr.P. art. 782(A) provides:

A case in which punishment may be capital shall be tried b y a jury of twelve jurors, all of whom must c oncur to render a verdict. A case for an offense committed prior to J anuary 1, 2019, in which punishment is necessarily conf i n e ment at hard l a b o r shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

4p ro v is i o n s o f t h e s t a t e co n st i tu t i o n , i n as m u ch as “ [a] co n st it u t i o n al p ro v i s i o n i s a

m o re b as i c, fu nd am en t al p ro v i s i o n t h an a s t at u t o ry en act m en t .” Sta te v . Ba zi l e , 1 1 -2 20 1 , p
. 6 (La. 1 / 2 4/ 12 ), 85 So .3 d 1 , 4. In Ba zi l e , t hi s co u rt ex pl ai n ed t h e

p ro h ib i t i on ag ai n s t a co u rt rai s i n g a co ns t i t u ti o n al ch al l en ge s u a s p o n t e i s ro o t ed in

t h e fact t h at “

ju dg es were ch arg ed by t h ei r j u d ici al o at h s t o en fo rce” th e l aws as
wri t ten

. I d
. , 1 1-2 2 0 1 at 5, 8 5 So .2 d at 4 (ci t in g Grea ter New Orl ea ns Ex pres s w a y
Co m ’n v . Ol i v i er , 0 4-2 1 4 7 , p . 1 0 (La. 1 / 1 9 / 05 ), 8 9 2 So .2 d 5 7 0, 5 7 7).

In h eren t i n t h e d efen d an t ’ s p o s i t i o n , n o t ed earl i er, t h at t h e d i s t ri ct co urt d i d n ot
i s su e a d ecl arat i on o f u n co ns t i tu t i o n al i t y , i s t h at t h e d i s t ri ct co urt di d n o t d o s o su a

s p o n te

. T h i s co u rt d i s ag rees wi t h t h e d efen d an t as t o t h e s u b s t an ce o f t h e d i s t ri ct

c o u r t ’s r u l in g an d fu rt h er rev i ew o f t h e p ro ced ural o ri g in s o f t h at d et erm i n at i o n

co m p el s t h e c o n c l u s i o n th at t h e d i s t ri ct co u rt ’ s ru l i n g was ren d ered s u a s p o n t e
. W h i l e i t i s t ru e th at “ t h ere i s no s i ng l e p ro ced u r e f o r at t ack i n g t h e co n s t i t u t i o n al i t y

o f a s t at u t e,” th i s co u rt h as i d en t i fi ed a t y pi cal t hree-s t ep an al y s i s fo r a ch al l en g er to

carry h i s b urd en t o p ro v e u nco n s t i t u t i o nal i t y
. Sta te v . Ha tto n , 0 7 -2 3 77 , p . 1 4 (La.

7 / 1 / 0 8 ), 9 8 5 So .2 d 70 9 , 7 1 9

. “ Fi rs t , a p art y m u st rai s e t h e u n co n st i tu t i o n al it y i n t h e

t ri al co u rt ; seco n d , t h e un co n s t i t u t i o n al i t y o f a s t at u t e m u s t b e s p eci al l y p l ead ed ; an d

t h i rd , t h e g ro u n d s o u t l i n in g t he b as i s o f u n co n s ti t ut i o n al it y m u s t b e p art i cu l ari zed .”

I d
. Here, i t was n o t t h e d efen d an t , b u t t h e s t at e t h at rai s ed a q u es ti o n ab o u t t h e

n u m b er o f ju ro rs neces s ary t o ren d er a g u il t y v e r d i ct

. Th e s tat e s o u g ht reco g n i t i o n

o f t h e no n u n an i m o u s verd i ct req u i rem en t v ia a m o ti o n in l i mi n e , w h i ch , co n s i s t e nt
wi t h t h e s t a t e ’s p res en t p o si t i o n , d i d n o t u rg e t h at t he n o nu n an i m o u s v erd i ct

p ro v is i o n s were u n co n st i tu ti o n al

. In a m o re u su al cas e, a d et erm i n at i o n t h at t h e d i st ri ct co u rt erred i n creat i n g a

co n st i t u t io n al i s su e wh ere n o n e was p res en t ed m i g h t en d t h e an al y s is o f t h e d i s t ri ct

5co u rt ’ s ru l i n g
. See, e.g ., Ba zi l e , s u p r a ; Ha tto n , s u

pr a
. Th i s i s n o t a u s u al cas e. Th e

s u b s t an t i ve reas o n t h e d i s t ri ct co u rt g av e wi t h i n t h e ru li n g i t s el f 7 fo r fi n d i n g t h e

n o n u n an i m o u s v erd ict pro vi s io n u n co ns t i t u ti o n al was th e d i s t ri ct co u rt ’ s earl i er
h o l d i n g i n Ma x i e
. Fo r h is p art , t h e d efen d an t arg u es “ [t ] h e di s t ri ct co urt was en t i t l ed

an d b o u n d t o ru l e i n acco rd an ce wi th i t s o wn p ri or, u n d i s t urb ed j u d gm en t i n Ma x i e .”
Th i s co u rt d i sag rees
. Ma x i e , as no ted ab o v e, was a d i s t ri ct co u rt ru l i ng t h at t h e n o nu n an i m o u s ju ry

v erd i ct was u n co n s t i t u t i o n al , pu rs uan t to t h e fed eral co n s t i t u t io n
. T h e ch i ef o b s t acl e

t o ap p l y in g t h e h o ld i n g i n M a x ie t o o t h e r c a s es i s t h e s am e p ro vi si o n p res en t l y

em po weri n g t h i s co u rt t o rev i ew t h e d ecl arat i o n of u nco n s t i t ut i o nal i t y i n t h i s c as e,
i .e. , La. Co n s t

. art . V, § 5 (D) (“ a cas e s h al l b e ap p eal ab l e t o t h e s u p rem e co u rt i f

...

a l aw o r o rd i n an ce h as b een decl ared un co n s ti t u t io n al .”). St at ed si m p l y , i f t h e d i s t ri ct

co u rt ’ s Ma x i e ru l i n g p rev en t s t h e d i s t ri ct co u rt fro m rev i ewi n g th e co n s t i t u t i o n al i t y

o f n o n un an i m o u s v erd i cts, t his c our t wi l l l i k ewi s e b e p rev en t ed fro m ap p el l at e rev i ew

o f an y ev id en ce an d arg u m en t o n co n st i tu t i o n al i t y
. 8 Su ch a s i t u at i o n wo u l d d efeat t h e

au t h o ri t y acco rd ed t o t h i s co urt t o s erv e as t h e fi n al , s t at ewi d e au t h o ri t y as t o wh at
l aws p as s co n s t i tu t i o n al m u s t er.

7 T he district court’s reference to the basis for its ruling of unconstitutionality w ithin the ruling itself disting uishes this case from G reater New Orleans Expressw ay C o m’ n v. Olivier , 0 2-2795, pp. 3-4 (L a. 11/18/03), 860 So.2d 22, 24. I n Olivier , this c ourt fo u n d i t l a c ked direct appellate jurisdiction under L a. Const. art. V, § 5(D) because only the district court’s reasons for judg ment, not the judg ment itself, indicated that the statute at issue was unconstitutional. Id
. The distinction here of the judg ment itself declaring laws unconstitutional neg ates a restrictive observation made in Olivier that “[ a ] ppeals are taken from the judg ment, not the written reasons for judgment.” Id
. at 3, at 24. F ormal distinctions aside, it would be nonsensical for this court’s observation in Olivier to thwart the full e x ploration of the very basis of this court’s jurisdiction, which is constitutionally conferred in the present case.

8 I n the pre s e n t c a s e, there was no evidence or arg ument adduced on the constitutionality of L a. Const. art. I , § 17 and L a. C.Cr.P. art. 782.
6In an an al og o u s cri m in al cas e, Ci ty of Shrev epo rt v . Ba y l o c k , 23 6 La. 1 3 3,

1 0 7 So .2 d 41 9 (1 9 5 8 ), t h i s co u rt co n s i dered wh et h er a d i s t ri ct co urt ju d g e was b o u n d
b y a p ri o r d ecl arat i o n o f u n co n s t i t u t i o n al i t y b y an o t h er d i s t ri ct co urt ju dg e. J u s t as
h e r e, th e p ri o r d ecl arat i o n o f u n co n s t i t u t i o n al it y h ad n o t b een ev al u at ed o n ap p eal

. Th e d efen d an t arg u ed th e d ecl arat i o n o f u n co n s t i t u t i o n al i t y b arred hi s p ro s ecu t i o n

u n d er an o rd i n an ce t h at h ad b een d ecl ared t o be u n co n s ti t ut i o n al

. Th is co u rt h el d t h at

t h e p ri o r d ecl arat i o n o f u n co ns t i t u t i o n al i t y b y t h e di s t ri ct c o u r t d i d n o t b ar t h e
d efen d an t ’ s p ro secu t io n u nd er t h at o rd in an ce. I d
. , 1 0 7 So .2 d at 4 22

. In Ba y l o ck , t h i s c o u r t su rv ey ed t he j u ri s p ru d en ce of o t her ju ri s d ict i o n s an d

n o t ed a co n s en s us o f “ ho l d i n gs
... t h at a d efi n it i ve ju d g m en t o f a t ri b un al th at i s n ot

a co u rt of las t res o rt i s co n cl u s i v e o n l y fo r t h e p art i cu lar cas e d eci ded an d i s n ot
b i n d i n g i n fu tu re cas es .” Id
. at 4 2 1

. Im p o rt an t l y , th i s co u rt al so reas o n ed th at i f t h e

p ri o r d i s t ri ct co u rt ju d g m en t o f u n co n s ti t ut i o n al it y was b i n d i ng i n a l at er cas e, t h at

wo u l d b ar “ t h i s co u rt o n a rev iew o f t he ju d g m en t

. . . fro m l at er d et erm i n i n g t h e s am e

co n st i t u t io n al i s s u e.” I

d
. at 4 2 2

. Al t h o ug h Ba y lo ck was d ec i d ed un d er a p rev i ou s

s t at e co n s t i t u t i o n , t h es e rat i o n al es rem ai n ap pl i cab l e to d ay b e c a u s e t h e

co n s titutio n al l y -m an d at ed ju ri s d i ct i o n al p ri n ci p l es t h en an d n o w are s u b s t an t i al l y t h e

s am e. Co m

p are La. Co ns t

. o f 1 9 2 1 art

. VII, § 1 0 (2 ) (1 9 5 8 ) (“ Cas es i n wh i c h

. . . a
l aw o f t h i s s t at e h as b een d ecl ared u n co n s t it u t i o n al ” are am o ng t h o s e t h at “ s h al l b e
ap p eal ab l e t o t h e Su p rem e Co urt .”), wi t h L a. Co n s t

. o f 1 9 7 4 art

. V, § 5 (D) (“ a cas e

s h al l b e ap peal ab l e t o t h e s up rem e co urt i f ... a l aw o r o rd i n an ce h as b een d ecl ared

u n co ns t it u t i o n al .”).
At t h i s co ncl u d i ng ju nct u re, a l o n gs t an di n g ru l e– refl ect i n g t h e p ri m ary ro l e o f
l eg i s lat i o n i n t h e ju s t i ce s y s tem

– b ears rep eat i n g : “ St at u tes are g en eral l y p res u m ed to
b e co n s t i tu t i on al an d t h e p art y ch al l en g i ng t h e v al i d i ty o f t h e s t at u t e b ears t he b u rd en

7o f p ro v i n g i t i s u n c o n s t i t u t io nal .” Ha tto n , 0 7-2 3 7 7 at 1 3 , 9 8 5 So .2 d at 7 1 9 (ci t i n g

Sta te v . Fl eury , 0 1 -0 8 7 1, p
. 5 (La. 1 0 /1 6 /0 1 ), 7 99 So

. 2 d 4 6 8, 47 2 ; Sta te v . Brenner , 4 8 6 So .2 d 1 0 1 , 10 3 (La. 1 9 86 ); an d Sta te v . Ro nes , 2 2 3 La. 8 3 9 , 6 7 So .2 d 9 9 , 1 0 5 ( 1 953) )

. Li k ewi s e, “ [a] co n s t i t u t i o nal p ro v i s i o n beg i n s as a l eg i s l at i v e e na c tm e nt a nd,

t h erefo re, al s o req u ires en fo rcem en t b y th e d i s t ri ct co u rt .” Ba zi le , 1 1 -2 2 0 1 at 6 , 8 5
So .3 d at 4 (ci t i ng La. Co n s t

. art

. XIII, § 1 (A) an d (C)). M eas u red b y th es e p ri n ci p l es ,
t h e d i s t ri ct co u rt ’ s d ecl arat i on o f u n co n s t i t u t i o nal i t y i n t h i s cas e rep res en t s t wo

s i m u l t an eo u s erro rs : (i ) c r e a ti n g , s u a s p o nt e , a co n s ti t ut i o n al ch al l en g e to st at u t o ry

an d co n s t i t u t i o n al p ro v i si o ns an d (i i ) s t ri k i n g d o w n t h o s e l aws as u n co ns t i t u ti o n al o n

t h e b as i s o f an earl i er, n o n bi nd i n g d i s tri ct co u rt ru l i n g.
DECREE
Fo r t h e fo reg o i n g reas o n s , t he ru l i n g o f t h e d i s t ri ct co u rt i s h ereb y v acat ed an d

t h i s m at t er i s rem an d ed to t h e d i s t ri ct co u rt fo r fu rt h er p ro ceed in g s co n s i s t en t w i t h

t h i s o p i n i o n.
VACATED AND REMANDED.

81

11 /19 /2019 S UPREME COURT OF LOUISIANA
No. 2019 -KA- 00568
STATE OF LOUISIANA
VS.
VALENTINO RAMON HODGE
ON APPE AL FROM THE 11TH JUDICIAL DISTRICT COURT, PARISH OF SABINE

JOHNSON, C.J ., dissents and assigns reasons. I disagree that the dis trict court created a constitutional issue where none was presented. Sua sponte means “ without prompting or suggestion; on its own motion. ”
Black’ s Law Dictionary (11th ed. 2019)

. In this case, it was the state

— not the court —who essentially forced the issue when it filed the motion in limine seeking an answer as to the number of jurors necessary to render a guilty verdict. As a result, the district court ruled that defendant was entitled to a unanimous jury verdict, effectively taking judicial notice
of the court ’s previous ruling on the constitutionality issue in State v. Maxie , 13 -CR-72522,
11 th Judicial District Court, Sabine Parish (October 11, 2018). It is undeniable that the adoption of Louisiana’s nonunanimous jury system, currently set forth in La. Const. art. I, § 17 and La. C.Cr. P. art. 782, was motivated by racial bias. In my view, the district court ’ s rulings in Maxie and this case, finding Louisiana ’ s nonunanimous jury scheme violates the Equal Protection Clause of the Fourteenth Amendment, are correct. Therefore, I must respectfully dissent.
Louisiana is one of only two states, with Oregon being the other, which allows split jury verdicts in felony cases. The nonunanimous jury system has undergone constitutional
chall enges as a violation of the Sixth Ame ndment. In 1972, the United States Supreme
Court in Apodaca v. Oregon , 4 06 U.S. 404, 92 S.Ct. 1628, 32 L.Ed. 2d 184 (1972) , effectively ruled in a split decision that the Sixth Amendment require s unanimous verdicts
in federal courts

— but the 14 th Amendment does not require unanimous verdicts in state

courts. This court has relied on Apodaca to continue to uphold the constitutionality of2 Louisiana ’ s system. See State v. Bertrand , 08

- 2215 (La. 3/17/0 9), 6 So. 3d 738 . Notably, a renewed Sixth Amendment challenge to our law is currently pending before the United
States Supreme Court in Ramos v. Louisiana , 18

- 5924, 139 S. Ct. 1318, 203 L. Ed. 2d 563 (2019) , wherein the Court is considering whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict in criminal cases.
T he issue of nonunanimous juries has gained scholarly attention and discourse because of
increased p ublic awarene ss regarding the racist roots of the Louisiana system

. L ast year
Louisiana voters approve d a constitutional a mendment requiring unanimous jury verdicts in felony cases . The a mendment applies to felony offense s committed on or after January 1, 2019

. See L a. Const. art. I, § 17 . Thus, the fate of defendants such as Mr. Hodge is still in the hands of divided juries as part of a system with racist origins and discriminatory
effect. I n my view, it is time to hold this Jim Crow era law unconstitutional.
I t is un fortunate that this court has chosen not to rule on the merits of the
constitutional issue due to the majority ’ s finding of p rocedural errors. The evidence underlying the district court ’ s ruling demonstrates the law is unconstitutional as a violation of the Equal Protection Clause. In determining whether a law violates the Equal Protection Clause, the Supreme Court has held there must be proof of racially discriminatory intent or purpose in addition to a raci ally disproportionate impact. See Arlington Heights v. Metropolitan Housing Dev. Corp ., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed. 2d 450 (1977). The documented materials from Louisiana ’ s 1898 Constitutional Convention leave
no doubt that the nonunanimous j ury verdict system in Louisiana was created for the invidious discriminatory purpose of minimizing or canceling out the voting power of black jurors and to deny African

- Americans meaningful participation in the institution of jury
service.
The prov ision pe rmitting non unanimous felony convictions was adopted during the
1898 Constitutional Convention and codified as Article 116: The General Assembly shall provide for the selection of competent and intelligent jurors. All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, which shall not be prior to 1904, be tried by the judge without a jury. Cases in which the punishment may be at hard labor shall be tried by a jury of five, all of whom must concur to render3 a verdic t; cases in which the punishment is necessarily at hard labor, by a jury of twelve, ni ne of whom concurring may render a verdict ; cases in which the punishment may be capital, by a jury of twelve, all of whom must
concur to render a verdict

. La. Const. art. 116 ( 1898 ) (emphasis added)

. This provision was approved during a convention which celebrated white supremacy. Hon. E.B. Kruttschnitt, President of the Convention, opened with the following relevant remarks: In the first place, my fellow

- citizens , we are all aware that this convention has been called by the people of the State of Louisiana principally to deal with one question, and we know that but f or the existence of that one question this assemblage would not be sitting here today. We k now that this convention has been called together by the people of the State to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded ou r politics

. *** I believe that our Northern fel low

- citizens be gi n to feel the race sympathy stilling within their breasts. They know that the question which we are trying to solve here is one which imperils not only the integrity of the future government of the State of Louisiana and those of eight or ten other Southern States, but that we sitting here as a deliberate assembly , and the assemblies of the other Southern States, are to decide whether the presidential office is to be put up for barter and sale on account of the irresponsible character of th e constituency in these Southern States. And of the venality and corruption of the delegation s which they send to certain national conventions. Only a few years back, it might have been consider ed impolite to say what I
am now saying, but there are men st anding high today in the councils of the nation, who have seen the doors of the W hite House barred to them by the ignorant and corrupt delegations of Southern negroes, and we know that they cannot but feel a sympathy with us in our aspirations and efforts. Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana (1898), 9

- 10. The purpose of the c onvention was further confirmed in closing
remarks by Judge Thomas J. Seemes, Chairman of the Committee on the Judiciary:
We met here to establish the supremacy of the white race, and the white ra c e constitutes the Democratic party of this State. There is, therefore, in my judgment, no separation whatever, between the interests of the State and those of the Democratic party, an d if we are to be subjected to criticism because our ordinances may have been colored with the view, in some instances, of promoting the interests of th e Democrati c party, as those interests are not separated from the State, I feel no hesitancy in saying t hat we have done no injury to the State. *** Now then, what have we done? is the question. Our mission was, in the first place, to establish the supremacy of the white race in this Stat e to the extent to which it could be legally and constitutionally done and what has our ordinance on suffrage, the constit ut ional mean s by which we propose to maintain that ascendency, done? We have established throughout the State whit e manhood suffrage

.4 Id. at 374

- 75. Judge Seemes went on to explain the c onvention delegates established a poll tax, an educational test for voters , and the requirement that voters should own property. However, the new c onstitution also provided a n exception for white men who were

“ grandfathered, ” and they would not be required to satisf y these new voter requirements as long as they registered to vote by a particular deadline

. Id . at 375.
Moreover, Mr. Kruttschnitt again addressed the c onvention in closing , making clear they would have gone even further in denying and suppressing the rig hts of African

Americans but were limited by the United States Constitution and federal courts : But I say to you, as George D. Tillman said to the South Carolina convention, when the labors of that convention were criti cized : We have not been free; we have not drafted the exact Constitution that we should like to have drafted; otherwise we should have inscribed in it, if I know the popular sentiment of this State, universal white manhood suffrage and the exclusion from the suffrage of every man with a trace of African blood in his veins. We could not do that , on account of the Fifteenth A mendment to th e Constitution of the U nited States and , therefore, we did what has been so well expressed by the Supreme Court of Mississippi ... within the field of permissible action, under the limitations imposed by the Federal Constitution, the convention swept the field of expedients to obstruct the exercis e of suffrage b y the negro
race. *** The first and foremost , and most important , problem which confronted us was that of the suffrage. *** We have placed it within t he power of the people of this State to have elections as fair and as pure as those in the State of Massachusetts herself ; and I say to you that we can appeal to the conscience of the nation, both judicial and legislative and I don ’ t believe that they will take the responsibility of striking down the system which we have reared in order to prote ct the purity of the ballot box, and to perpetuate the supremacy of the Anglo

- Saxon race in Louisiana. If they do, theirs be the responsibility for bringing back the methods which have prevailed in the pa s t

- not ours. We have laid them aside . We have reare d a perfectly clean structure , and we intend to have a clean electorate, if the re s t of the nation will allow it, and believe that they will. Our mission was, in the first place, to establish the supremacy of the white race in this State.
Id. at 379

- 81. This shocking landscape is plainly outlined in the official records of the 1898
Convention , and has been thoroughly explained and put into context by scholarly experts. Such expert testimony is part of the evidence underlying the district court ’ s declarat ion of unconstitutionality. A review of th is underlying evidence is critical to fully explain the5 underpinnings of the establishment of the nonunanimous jury system in Louisiana

. The
district court ’ s ruling was based on its own prior ruling in State v. Max ie , supra . In Maxie , the court conducted a full evidentiary hearing on Maxie ’ s constitutional challenge to the nonunanimous jury scheme and issued written reasons for finding a unanimous jury verdict is constitutionally required for conviction. 1 The parties in Maxie stipulated to certain
document s to be submitted into evidence , including a certified transcript of a Motions Hearing in the matter of State v. Lee , No. 500

- 034 & 498

- 666, Criminal District C ourt, Parish of Orleans, 2/3/17, which includ ed testimony from expert witnesses called in that matter, namely Professor Emeritus of History Lawrence Powell of Tulane University and Professor Kim Taylor

- Thompson of New York University. Additionally, the defense called
three live witnesses: John Simerm an of The Advocate newspaper , Professor Thomas Aiello, and Professor Thomas Frampton. Mr. Simerman worked with two other individuals to develop the investigative series, “ Tilting the Scales, ” regarding the history of Louisiana ’ s nonunanimous jury verdict s ystem and its pernicious effects on the criminal justice system

. Mr. Simerman was called to testify as to the methodology of the study and to verify and authenticate the data and conclusions as detailed in the published series. Mr. Simerman provided a deta iled analysis as to the collection methods for the dataset used to calculate the impact of a non

- unanimous jury verdict scheme on the Louisiana criminal justice
system. Professor Thomas Aiello, an associate professor of history and African

- American
studie s at V a ld o sta State University , authored Jim Crow ’ s Last Stand , a comprehensive book on the history and context of Louisiana ’ s majority verdict system

. Thomas Aiello,
Jim Crow ’ s Last Stand

–

Nonunanimous Jury Verdicts in Louisiana (Louisiana State University Press 2015). Professor Aiello was accepted by the court as an expert historian.
Professor Aiello ’ s testimony made clear that following Reconstruction, many in Louisiana became increasingly concerned about the ability of African

- Americans to exercise

1 Although the Maxie court ’ s reasons for judgment were not made part of the record in this case, that document is included in the Joint Appendix submitted in the United States Supreme Court by the parties in Ramos v. Louisiana , No. 18

- 5924, Joint Appendix, p. 25

- 83; https://www.supremecourt.gov/DocketPDF/18/18

- 5924/102616/20190611121914120_18

- 5924%20Joint%20Appendix%20

- %20Final.pdf ; 2018 WL 8545357, *2 4

- 71.6 “ political and legal power. ” One of the key areas where African

- Americans were participating, outside of voting, was in jury service bec ause the United States Supreme
C ourt had held in Strauder v. West Virginia , 100 U.S. 303 (1879), that the Fourteenth Amendment prohibited excluding residents from jury duty on the basis of race. 2018 WL 8545357, at *39

. However, the white South pushed back against this and attempted to exclude minority members in every conceivable manner. 2018 WL 8545 357, at *39

. Professor Aiello testified the general consensus was that African

- Americans did not deserve to serve on juries in Louisiana, explaining that “ [w]hile the end of the Civil War did make the slaves free, it did not make them the peers of white pe ople in Southern white minds. And if you were supposed to get a fair trial by a jury of your peers, there are a very scant few white Southerners in the Gilded Age who saw black jurors as their peers; and it was an affront to justice for white people to put black jurors in front of them to decide their
fate. ” 2018 WL 8545357, at *40. Professor Aiello further testified the purpose of the Constitutional Convention of 1898 was clear and unequivocal, “ to eliminate black political

power. ” 2018 WL 8545357, at *44

- 45. The Maxie court stated : Professor Aiello testified as to the historical context surrounding the constitutional conventions of both 1898 and 1973. He provided a detailed analysis of the prevailing sentiments and feelings of the delegates at the conventions and the general societal beliefs during these periods of time. His testimony persuasively demonstrated that race was a motivating factor behind the adoption of the 1898 constitution, especially with respect to disenfranchisemen t of minority voters and stripping the ability of minorities to influence the judicial system. His testimony also persuasively showed that the 1973 convention was not free from racial consideration and that the delegates at the convention were keenly aware of the racial tensions when drafting the new constitution. His testimony provides the historical basis for this Court ’ s determination that the non

- unanimous jury verdict scheme in Louisiana was motivated by invidious racial discrimination.
2018 WL 854535 7 , at *37

- 38.
Professor Thomas Frampton, lecturer at Harvard University on staff as a Climenko
Fellow , with a B.A. and M.A. from Yale University, summa cum laude , and a J.D., with highest honors, from Berkeley School of Law , was proffered and accepted by the court as an expert lawyer, with a specialty in legal history, race, and the law. Professor Frampton
endorsed Professor Aiello ’ s testimony and concurred with his conclusions and analysis.
2018 WL 8545357 , at *48

- 49. Professor Frampton was retained as an expert to perform7 an independent empirical analysis of the data collected by Mr. Simerman for The Advocate series. He performed his own data analysis to verify the results as presented were accurate. He also performed empirical analysis of the data according to Supreme Court precedent with respect to disparate impact and proving unconstitutional racial discrimination. 2018
WL 8545357 , at *49. Based on his empirical an alyses of the data, it was his expert opinion
that “ t he non

- unanimous jury verdict system operated today just as it was intended in 1898:
to silence African

- Americans on juries and to render their jury service meaningless. ” 2018
WL 8545357 , at *52. Professor Frampton explained that he performed his analysis in the

context of the literature pioneered by Dr. Kim Taylor

- Thompson on “ empty votes. ” Dr. Taylor

- Thompson defined “ empty votes ” as “ those cast by the minority in a super

- majority regime. These votes are essentially meaningless because a majority can come to the conclusion without discussion or inclusion of the minority point of view. ” 2018 WL
8545357 , at *50 n. 1. Dr. Frampton ’ s data analysis revealed that “ only 43 percent of empty votes are cast by white jurors. This represents a 21 percent absolute disparity, or 21 percent less than what would be expected if there were nothing else operating on the outcome.
African

- American votes represented 31.3 percent of overall votes cast, but represented 51.2 percent of the empty votes cast. This is an absolute disparity of 20 percent. ” 2018 WL
8545357 , at *51. Further, given the data provided by The Advocate , Dr. Frampton concluded that these disparities cannot be explained from random vari ation in the data and that these findings are statistically significant u nder Supreme Court preceden t in the race

discrimination context. 2018 WL 8545357 , at *51

- 52. Professor Frampton also examined the data with respect to the impact on defendant as opposed to juror representation

. The data revealed that “ A frican

- American def endants are convicted by non

- unanimous juries 43 percent of the time and that white defendants are convicted by non

- unanimous juries 33 percent of the time. Comparing these rates of conviction by non

- unanimous verdicts, Professor Frampton found a disparity of approximately 30 percent. That is, African

- Americans are 30 percent more likely to be convicted by non

- unanimous juries than white defendants. These results were statistically significant and indicated racial discrimination against African

- American def endants. ”8 2018 WL 8545357 , at *52

- 53. Professor Frampton further opined that “ jury deliberations
tend to be less robust and shorter when non

- unanimous verdict rules are in place. That is, once the minimum number of votes are achieved, deliberations end, regardless of the desire of the minority to continue deliberating. ” 2018 WL 8545357 , at *53.

T he evidence and expert testimony proves that the motivating factor behind the
Constitution al Convention of 1898 was to establish white supremacy throughout the State of Louisiana. As noted by the Maxie court, “ the leaders of the convention openly and on the record endorsed racial discrimination and white supremacy as the goal and the outcome
of the Convention. ” 2018 WL 8545357 , at *58. The evidence submitted in Maxie further proves that the current law is also unconstit ut ional as applied. Although the law has minimally changed since the 1898 Constitution , and now requires ten jurors to agree, rather
than the original nine juror requirement, this change did not eliminate the discriminatory impact of non

- unanimous jury verdict s . The current law is still traceable to the original system and still has discriminatory effects. See United States v. Fordice , 505 U.S. 717, 73 4 , 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) . As found by the Maxie court, “ the 1974 provision is rooted in and fairly traceable to the provisions of the 1898, 1913, and 1921 constitutions allowing for non

- unanimous verdicts. It has already been conclusively established that the 1898 provision is unconstitutional under the Arlington Heights

... jurisprudence. It is also the undisputed expert testimony of Professor Aiello that the provisions in 1913 and 1921
were reenacted without debate or comment. ” 2018 WL 8545357 , at *62. The court further
cited Profess or Aiello ’ s testimony that the final outcome of the 19 73 Constit ut ional
Convention was to com promise and keep the unanimity requirement only as to capital cases
and to increase the rule to 10

- to

- 2

. The 1973 C onvention wanted to decrease , but not
eli minate , the discriminatory impact of non

- unanimous jury verdicts. Both Mr. Simerman and Professor Frampton testi fi ed regarding the disparate impact on African

- Americans that
stem from the current non
- unanimous verdict rule , and both indicated that the empi rical analyses they conducted showed statistically significant results that demonstrate disparate impacts. 2018 WL 8545357 , at *63.9 In written reasons for judgment, the Maxie court detailed the unopposed and unchallenged evidence produced at th e hearing and concluded: The evidence, unopposed and unchallenged by the State establishes the following: 1) The original 1898 enactment was motivated by invidious racial discrimination; 2) The enactment of 1973 perpetuates the disparate impact of the 189 8 provision; 3) The delegates at the Convention of 1973 did not cleanse the racial motivation from 1898; 4) The delegates at the Convention of 1973 at the very least tacitly acknowledged the discriminatory impact of the 1898 provision and merely attempted to ameliorate, but not cure, this disparate impact; 5) The current provision perpetuates invidious racial discrimination; and 6) The current non

- unanimous jury verdict scheme disparately affects African

- American jurors by negating their jury service and di sparately affecting African

- American defendants by overwhelmingly convicting them by non

- unanimous juries.
2018 WL 8545357 , at *71. T his evidence compel s a finding that Louisiana ’ s non
unanimous jury scheme violate s the Equal Protection Clause of the Four teenth
Amendment

. Although th e majority of th is court does not decide the constitutional issue today,
we should not ignore the shameful history surrounding our system, nor shy away from forcing its end. “ The history of nonunanimous criminal jury verdicts acts as its own advocate for ending the practice. ” Aiello, supra , at p. xi.