#### Richard ANGELICO, Ronald Ridenhour and Clancy Dubos v. Honorable Leon A. CANNIZZARO and Harry F. Connick.

No. 88-CA-2493.

Court of Appeal of Louisiana, Fourth Circuit.

April 27, 1989.

*1065Stephen B. Lemann, Yvonne Chalker, Monroe & Lemann, New Orleans, for plaintiffs/appellants.

William F. Wessel, Victoria Lennox Bar-tels, Wessel, Bartels and Ciaccio, New Orleans, for Harry F. Connick, defendant/ap-pellee.

Before SCHOTT, C.J., and PLOTKIN and BECKER, JJ.

BECKER, Judge.

Plaintiff/appellant newsmen, Richard Angelico, Ronald Ridenhour and Clancy DuBos, seek review of the trial court’s granting of an exception of lack of jurisdiction filed by defendants/appellees New Orleans District Attorney Harry F. Connick and Orleans Parish Criminal District Court Judge Leon A. Cannizzaro. The only issue on appeal is whether the Civil District Court has jurisdiction to issue a writ of mandamus ordering the defendants to release a report prepared by a special grand jury convened in relation to the New Orleans city sales tax investigation. However, because of judicial economy and the interest of the public, we will also make a determination whether the report falls within the scope of the Public Records Act. LSA-R.S. 44:1 *et seq.*

FACTS

A special grand jury was convened in March of 1987 in connection with the New Orleans Parish District Attorney Office’s investigation of suspected irregularities in the sales tax collections in the City of New Orleans. The plaintiffs allege that on September 7, 1988, in anticipation of its discharge, the special grand jury presented a 13-page report concerning the investigation to Judge Cannizzaro. That report, which was reportedly critical of the district attorney’s office’s handling of the investigation, was then reviewed and revised by Assistant District Attorneys Bridget Bane and Kevin Boshea. On September 8, 1988, a five-page report was presented to the jury foreman to sign. When this final report was presented for Judge Cannizzaro’s signature on September 12, 1988, the district attorney’s office requested an order suppressing the report based on La.C.Cr.P. arts. 434 and 444, which provide for secrecy of grand jury proceedings and delineate the duties of grand juries. The motion to quash was granted, based on Judge Canniz-zaro’s finding that the special grand jury had exceeded its authority in preparing the report. On September 17, 1988, Judge Cannizzaro held a rehearing on the motion to quash at the request of “Save Our Wetlands,” an intervenor. After hearing argu*1066ment, Judge Cannizzaro again concluded that the court was without authority to release the report.

Two of the plaintiff newsmen, Ridenhour and DuBos, and their employers made written demand dated September 16, 1988, upon District Attorney Connick that he make the reports public. They argued that the reports constituted “public records” under LSA-R.S. 44:1 *et seq.,*the Public Records Act. Those requests were denied by Connick in writing dated September 22, 1988, based upon the provisions of La.C.Cr.P. arts. 434 and 444. Additionally, District Attorney Connick stated that his office was not in possession of the reports and that he was not the custodian of those reports. The newsmen also made the same demand upon Judge Cannizzaro, who denied their requests by letter dated October 3, 1988, on the basis that the reports do not constitute “public records” under the applicable statutes.

Thereafter, on October 12, 1988, the plaintiff newsmen filed a Petition for Writ of Mandamus in the Civil District Court, seeking issuance of a writ ordering District Attorney Connick and Judge Cannizzaro, as custodians of the reports, to make the reports available to the public. Connick filed an exception to the jurisdiction of the court and an exception of no cause of action, which Judge Cannizzaro joined in asserting. The court considered only the exception to jurisdiction, which was granted on November 7, 1988, based on the judge’s holding that he had no jurisdiction to review Judge Cannizzaro’s prior order suppressing the reports.

JURISDICTION

The Public Records Act provides, in pertinent part, as follows:

> R.S. 44:31 *Right to examine records*

> Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of any public record.

> R.S. 44:32 *Duty to permit examination*

> 

> A. The custodian shall present any public record to any person of the age of majority who so requests ...

> R.S. 44:35 *Enforcement*

> A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days ... from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

> B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.

The Public Records Act specifically provides for jurisdiction to seek a writ of mandamus in the district court of the parish in which the custodian’s office is located. LSA-R.S. 44:35.

However, the unique division of the court system found in Orleans Parish is the source of confusion in situations such as the present case. The district courts in every parish except for Orleans are vested with both civil and criminal jurisdiction, while Orleans Parish has a split criminal and civil system. LSA-R.S. 13:1137 and LSA-R.S. 13:1336, in pertinent part provide:

> R.S. 13:1137 *Civil District Court for the Parish of Orleans; jurisdiction*

> A. The Civil District Court for the Parish of Orleans has the same jurisdic*1067tion as the district courts throughout the state, except as otherwise provided by law.

> R.S. 13:1336 *Criminal District Court for the parish of Orleans; jurisdiction; powers.*

> A. The Criminal District Court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors, and offenses committed within the Parish of Orleans if the jurisdiction is not vested by the law in some other court.

The question as to jurisdiction, in Orleans Parish, therefore becomes whether or not the matter at issue is characterized as criminal or civil in nature. In the instant case, the District Attorney requested the impaneling of a special grand jury as provided for by La.C.Cr. art. 415.1 for the purpose of conducting, among other things, an investigation of suspected improprieties in the sales tax collections in the City of New Orleans, possibly criminal violations. Judge Leon Cannizzaro was the judge who impaneled the special grand jury, which was under his control and instructions, at least to the extent of requiring them to observe and obey the law. Any action taken by the jury must be reported to the presiding judge. C.Cr.P. art. 401 *et seq.*They did so by filing this report to him in open court. Judge Cannizzaro, after reviewing the report, found that its issuance was beyond the legal authority of the jury as set forth in La.C.Cr.P. art. 444 and LSA-R.S. 15:121. He further found, after request by plaintiffs, that the report, being issued illegally, was not a public record. There can be no doubt that a report from a criminal grand jury duly impaneled and presided over by a Criminal District Judge is criminal in nature and under the jurisdiction of the Criminal District Court.

It is well settled that a judge of the Civil District Court has no jurisdiction over a judge of the Criminal District Court while he is acting in his official capacity. As was stated in *Maryland National Insurance Co. v. Garrison,*233 So.2d 32 (La.App. 4th Cir.1970), writ refused, 256 La. 251, 236 So.2d 30 (1970).

> “... we still view as absolutely intolerable that one court having neither appellate, nor supervisory jurisdiction over a second court, should attempt to interfere by an injunction against the second court with that court’s operation of what it deems, rightly or wrongly, to be its business.”

> “If the Civil District Court can enjoin the Criminal District Court, perhaps the Criminal District Court could imprison the Civil District Judge for contempt or conspiracy.” Also see *Connick v. Ward,*351 So.2d 250 (La.App. 4th Cir.1977); *State v. Julian,*438 So.2d 590 (La.App. 4th Cir.1983).

We therefore conclude that the trial court’s action in refusing to accept jurisdiction over Judge Leon Cannizzaro was correct since any order issued by that trial judge would have been meaningless.

The proper method in these particular and peculiar circumstances would have been for plaintiffs, once Judge Cannizzaro refused their request on the ground that the report was not a public record, to seek supervisory writs to this court. In *State v. Platt,*193 La. 928, 192 So. 659 (1939) two grand jurors were held in contempt of court for reading aloud in court a report critical of the District Attorney after the judge told them the report had to be kept secret. The court observed:

> “If the District Judge had illegally ruled that the document could not be read or filed, his action in that respect would have been subject to review by the tribunal of superior jurisdiction in an orderly manner.” 192 So. at page 672.

Although the Public Records Act was first enacted by Art. 195 of 1940 after the *Platt*decision, we do not believe it was the intent of the legislature to upset the statutory scheme for the functioning of the grand jury under the supervision of the district judge who empaneled the jury and the normal procedure for the review of the trial court’s decisions by a superior court.

We disagree that the trial judge did not have jurisdiction of District Attorney Con-nick, for the district attorney is not in the same position as a judge and if he was the *1068custodian of a report which was legally a public record, he could be ordered to produce it as per the Public Records Act. However, because we have assumed the responsibility of determining whether or not the jury report is or is not a public record, we find the trial court’s ruling as to Mr. Connick moot.

PUBLIC RECORDS

The Public Records Law, LSA-R.S. 44:1 *et seq.,*provides that certain types of documents are public records except as otherwise provided in that chapter or as otherwise specifically provided by law. The Code of Criminal Procedure article 444 provides:

> “A. A grand jury shall have the power to act, concerning a matter, only in one of the following ways:

> (1) By returning a true bill

> (2) By returning not a true bill

> (3) By pretermitting entirely the matter investigated.

> The grand jury is an accusatory body and not a censor of public morals. It shall make no report or recommendation, other than to report its action as aforesaid.

> C. A grand jury may make such reports or request as are authorized by law.”

A regular grand jury is required to inspect prisons, places of detention, asylums and hospitals within the Parish and make a report to the District Judge on those institutions. LSA-R.S. 15:121. There are no other reports which are authorized by law to be made by a grand jury. Further, members of a grand jury, all other persons present at a grand jury meeting and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of all witnesses and *all other matters*occurring at, or directly connected with, a meeting of a grand jury. C.Cr.P. 434 (emphasis added).

As was so succinctly stated by our legislature, the function of a grand jury is solely for the purpose of criminal investigation and it is not a body to censor the public morals. After an extensive review of all the statutes concerning the grand jury which preceded those presently incorporated in Title XII of the Code of Criminal Procedure, the Court in *State v. Platt,*(supra) stated:

> “Returning now to the law of our own state, the document which Powell and DeArmas, as grand jurors, tried to read without the court’s permission, certainly censured the District Attorney and his staff and charged them with incompetency, favoritism and misconduct in office, ie. malfeasances and nonfeasance and they were deprived of an opportunity to defend their professional and personal reputations and good names.

> .... However we reiterate that the duties of the grand jurors and their power and authority have been restricted by articles 206, 210 and 211 of the Code of Criminal Procedure of Louisiana and section 42, Article VII of the Constitution of 1921,1 and therefore, the document titled “Request to the Honorable Judge Platt for Assistance” was a type of finding, report or return which the grand jury was without authority and power to present to the court.” 192 So. at 679.

We have reviewed the “report” issued to Judge Cannizzaro and find that it contains no information or evidence which would lead to any type of prosecutorial action. It was not an indictment, nor a non-indictment and therefore was not conducted, transacted or performed by or under the authority of the Constitution or laws of this state and as such is not a public record.

The ruling of the trial court is therefore affirmed.

AFFIRMED.

PLOTKIN, J., dissents with reasons.

1

. Now C.Cr.P. arts. 413, 414, 435, 444; and LSA-R.S. 15:121.

PLOTKIN, Judge,

dissenting.

For the following reasons, I respectfully dissent to the majority’s conclusion that the trial judge properly granted the exception to jurisdiction filed by defendants Judge Cannizzaro and D.A. Connick. I would re*1069verse the trial judge’s finding that Civil District Court has no jurisdiction to decide this matter, deny the exception and remand the case to the trial judge for determination of the status of the documents in question under Louisiana’s Public Records Act.

*Jurisdiction*

As the majority notes, the Public Records Act specifically provides for jurisdiction to seek a writ of mandamus in the district court of the parish in which the custodian’s office is located. LSA-R.S. 44:35. This statement of jurisdiction causes problems in Orleans Parish because of the division of Civil District Court and Criminal District Court. The problem is further complicated in this case by the fact that one of the custodians of the records is a Criminal District Court judge. As the majority states, the resolution of the problem turns on whether the issue is civil or criminal in nature. I disagree with the majority’s holding that the issue is criminal. The majority decision states that “[tjhere can be no doubt that a report from a criminal grand jury impaneled and presided over by a Criminal District Judge is criminal in nature and under the jurisdiction of the Criminal District Court.” However, I see the issue differently. The reports themselves are obviously criminal in nature, but I believe that the determination of whether the reports fall within the provisions of the Public Records Act is nonetheless civil in nature.

The Public Records Act is clearly a civil statute and I believe that any controversies arising under the provisions of LSA-R.S. 44:1 *et seq.*should therefore be decided by the Civil District Court in Orleans Parish. This conclusion is supported by a review of LSA-R.S. 13:1336 and 13:1137, which define jurisdiction in the two courts and are quoted by the majority. LSA-R.S. 13:1336, relative to jurisdiction of Criminal District Court, clearly restricts the jurisdiction of Criminal District Court to matters involving trial and punishment of crimes, as set out in Title 14 of the Louisiana Revised Statutes. Jurisdiction in all other matters is reserved to Orleans Parish Civil District Court. Since the Public Records Act is found under Title 44 of the Revised Statutes, I believe that proper jurisdiction is in the Civil District Court. Under this analysis, the trial court’s granting of the exception to jurisdiction in the instant case was improper.

The majority cites a number of cases which hold that a Civil District Court judge has no jurisdiction over a Criminal District Court judge acting in his official capacity. I have no quarrel with that principle. However, I do not believe that Judge Can-nizzaro was acting in his official capacity as a Criminal District Court judge when he denied the plaintiffs access to the reports which are the subject of this case. A careful reading of the record reveals that Judge Cannizzaro never made any formal ruling concerning the status of the reports as public records. He simply made a statement in a letter answering plaintiffs' written demand for production of the reports that he “is of the opinion” that the reports do not fall under the statute. No motion was filed on that issue, no hearing was held and no formal judgment was issued. In my view, plaintiffs made written demand on Judge Cannizzaro, not as a Criminal Court Judge, but as custodian of the report, in compliance with the express provisions of the Public Records Act. Judge Cannizzaro’s answer rejecting that demand was written in the same capacity. I agree that a Civil District Court judge should not be given jurisdiction to enjoin or compel a Criminal District Court judge concerning areas over which Criminal District Court has original jurisdiction. However, I feel that rule should not apply here because Judge Cannizzaro was not acting as a Criminal Court judge when he refused the plaintiffs’ request. The Civil District Court judge to whom the question is properly addressed should not be bound by such an informal action taken by a Criminal Court judge, especially if, as I believe, that Criminal Court judge has no jurisdiction over controversies arising under the Public Records Act.

Further, I believe that if this controversy had arisen in any other parish in the state, where civil and criminal jurisdiction are combined in a single district court, a differ*1070ent judge from the one who is the custodian of the report would have had to decide the status of the report under the Public Records Act. The majority emphasizes the fact that one branch of court is exercising jurisdiction over another branch of the court if Civil District Court is allowed to hear this case. However, in my view, Judge Cannizzaro is just like any other public official who happens to have custody of a document which potentially falls under the provisions of the Public Records Act. The fact that he also happens to be a judge should not influence the application of the procedure provided by law in the statute covering this issue. His activities as custodian of the report should be reviewed by a district court judge before the issue is brought before this court.

I therefore disagree with the majority’s statement that the proper procedure for seeking review of Judge Cannizzaro’s ruling would have been for the plaintiffs to file supervisory writs in this court immediately after Judge Cannizzaro refused their request for production of the documents. Since Judge Cannizzaro never made any formal ruling on the issue, there was no action for this court to review at that point. Therefore, in my view, the plaintiffs could not have properly invoked the jurisdiction of this court immediately following Judge Cannizzaro’s informal statement of his “opinion” that the reports do not fall under the statute. Additionally, and significantly, the plaintiffs were simply following the express provisions of the Public Records Act when they filed suit for a writ of mandamus in the Civil District Court.

*Status of the Reports Under the Public Records Act*

I also disagree with the majority’s decision to review the documents in question and make a ruling on their status under the Public Records Act. I would remand the case to the trial judge and order him to make an independent determination of whether the reports requested properly fall under the provisions of the Public Records Act. As indicated above, I do not feel that issue is properly before this court at this time because no district court has made any formal ruling regarding that issue and because the parties have not briefed that issue.

Even if Judge Cannizzaro was correct in his only formal ruling in this case — that the reports were unauthorized under La.C.Cr. P. arts. 434 and 444 and LSA-R.S. 15:121 —I don’t believe that fact necessarily precludes their classification as public records. On the record as it stands, the plaintiffs’ contention that the reports were ordered by the district attorney’s office in the first place is uncontested. Even if the grand jury is not ordinarily authorized by statute to file reports for the type of investigation involved here, the fact is that the reports do exist and therefore all or part of the documents might be public records. The statutes provide that the custodians of the report have the burden of sustaining their action refusing access to the reports. Therefore, I would remand the case and place the burden of proving that the reports fall outside the Public Records Act on Judge Cannizzaro and D.A. Connick.

La.C.Cr.P. art. 434, which establishes the secrecy of grand jury proceedings, allows persons to reveal statutory irregularities. I disagree with the majority’s implied finding that only “information or evidence which would lead to ... prosecutorial action” would qualify as a “statutory irregularity.” The Public Records Act allows the district judge deciding the writ application to view the documents in camera before deciding the issue. I feel that he should be allowed to review the documents and, if his review reveals that the reports deal with statutory irregularities of any kind, that fact should be considered in the decision concerning the status of the reports as public records.

Additionally, the majority reviewed only the five-page “sanitized” report actually prepared by members of the district attorney’s office. After seeing only that report, they conclude that the reports requested by the plaintiffs do not fall under the Public Records Act. Obviously, the report prepared by the district attorney’s employees does not contain information critical to the district attorney’s office. I am not sur*1071prised that the majority failed to find any “information or evidence which would lead to any type of prosecutorial action.” The employees who prepared the final report excised eight pages of materials the members of the grand jury felt were important enough to report. Certainly this court should not decide an issue not even presented by this appeal without even viewing the most important document in question.

For the above and foregoing reasons, I would reverse the trial judge’s decision granting the exception to jurisdiction and remand the case for further proceedings.