The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-1383
CITY OF BROUSSARD
VERSUS
MICHAEL WATKINS
d/b/a MICHAEL'S INTERNATIONAL
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 98718-I
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
BROUSSARD MUNICIPAL COURT,
PARISH OF LAFAYETTE, NO. 2002-157
HONORABLE CAROL SPELL, MAGISTRATE JUDGE
**********
GLENN B. GREMILLION
JUDGE
**********
Court composed of Glenn B. Gremillion, Billy Howard Ezell, and *Arthur J.
Planchard, Judges.
* Honorable Arthur J. Planchard, Retired, participated in this decision by
appointment of the Louisiana Supreme Court as Judge Pro Tempore.
REVERSED AND REMANDED.
Edward B. Broussard
Prosecutor, City of Broussard
P. O. Box 7
Abbeville, LA 70511-0007
(337) 893-3423
Counsel for: Plaintiff/Appellee
City of Broussard
Ronny Melebeck
Attorney at Law
113 E. Lafayette Street
Abbeville, LA 70510
(337) 893-5776
Counsel for Plaintiff/Appellee
City of Broussard
Frank Edward Barber
David Groner, P.L.C.
P. O. Box 9207
New Iberia, LA 70562-9207
(337) 364-3629
Counsel for Defendant/Appellant
Michael Watkins
GREMILLION, Judge.
In this case, the defendant, Michael Watkins, appeals the decision of the
district court which suspended his occupational license for fifteen days. For the
following reasons, we reverse the ruling of the trial court and remand for further
proceedings.
FACTUAL BACKGROUND
Watkins was issued two misdemeanor summonses dated January 2, 2002,
and March 22, 2002, for violations of Ordinance 144 at his place of business,
Michael’s Gentlemen’s Club. Broussard, LA, Ordinance 144 (Mar. 14, 1995). There
are court minutes in the record from the magistrate court proceedings that appear to
have been filed as attachments to Watkins’ Motion and Order for Appeal to the
district court. The minutes indicate Watkins was arraigned on January 31, 2002, and
he entered a plea of not guilty. On May 30, 2002, a motion to quash was denied. The
magistrate court minutes, dated January 30, 2003, indicate Watkins again pled not
guilty, and trial of motions was set for March 27, 2003. On that date, a motion to
dismiss was heard and denied. The next minute entry, dated April 24, 2003, states,
“[p]lead (sic) not guilty guilty (sic) the judgement (sic) date is 4/24/03 occupational
license is to be suspended for 15 days effective immediately upon conviction
becoming final (after all appeals have been exhausted); verdict is combined for both
convictions.” Although a transcript of the March 27, 2003 hearing on a motion to
dismiss/motion to quash appears in the record, there is no trial transcript in the
record.1 The matter was appealed to the district court and that court affirmed the
1
We note that the March 27, 2003 “transcript” is titled “Minute Report,” but it contains all
of the statements made by the parties, as well as the testimony of five witnesses.
1
decision of the magistrate court “suspending the occupational license for 15 days
effective immediately.” Watkins is before this court seeking review of the district
court’s ruling.
CRIMINAL VERSUS CIVIL CASE
Before addressing the assignments of error raised by Watkins, it is
necessary to discuss whether this case should be treated as a civil or criminal matter.
If the proceedings are civil, they can continue as an appeal, but, if they are criminal,
they would have to proceed as an application for supervisory writs. We note that,
from the outset, this case has been treated as a criminal matter by the lower courts.
Watkins was charged by affidavit (misdemeanor summons) and was referred to in the
court minutes as “the accused.” Additionally, the minutes indicate Watkins was
“arraigned” and pled “not guilty.” There is also reference to the “verdict” and
“conviction” in the court minutes. Furthermore, on appeal to the district court, that
court stated Watkins was “found guilty” and a “sentence” was imposed.
Although both parties refer to this as a criminal matter and neither party
has questioned whether this case is criminal or civil, we find this to be a civil
proceeding. Although we could find no cases directly on point, we located several
cases that provide guidance in assessing whether a proceeding is a criminal or civil
matter.
In State v. Page, 332 So.2d 427 (La.1976), the supreme court was called
upon to determine whether a license revocation proceeding under the Motor Vehicle
Habitual Offender Law was civil or criminal. In addressing this issue, the supreme
court stated:
2
Factors which militate in favor of the conclusion that the
proceeding is civil are these:
1) The Act directs that the petition be filed, not in the
parish where the offenses were committed, as would be the
case in a criminal action (La.Const. art. I, § 16 (1974);
C.Cr.P. art. 611) or a criminal enhancement proceeding
[R.S. 15:529.1(D)], but in the parish of the defendant's
residence.
2) An appeal taken from any final action or judgment
entered under the provisions of the Act is in the same
manner and form as appeals in civil actions. R.S. 32:1478.
3) The fundamental purpose of the Act is to promote
highway safety by denying driving privileges to habitual
traffic law offenders (32:1471), a distinctly non-criminal
objective.
One purpose of the Act is, of course, to discourage repetition of
criminal acts, but this alone is not sufficient to give the Act a penal
character since deterrence of wrongful criminal conduct while often an
object of criminal statutes may be an objective of a regulatory statute as
well. See McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57
L.Ed. 754 (1913); United States v. Kordel, 164 F.2d 913 (7th Cir. 1947),
aff'd, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948).
There are, of course, features of the Act not now before us which
are penal, or criminal. For instance, 32:1480 may result in
imprisonment for driving while classified as a habitual offender.
However, this is an independent feature of the Act separate and distinct
from the revocation proceeding.
Id. at 429.
After discussing two Louisiana appellate court cases, which hold that a
revocation proceeding is civil, and citing numerous other state supreme court cases
finding similar proceedings to be civil actions, the supreme court noted that
proceedings to revoke local driver’s licenses are “generally regarded as civil
proceedings.” Id. at 429-30. The supreme court further stated:
3
License revocation procedures, even those following conviction
for a specific traffic violation, have been considered civil actions by
Louisiana courts. Under La.R.S. 32:667, 668 which provides for
suspension of license after refusal to take a blood alcohol test, the
revocation procedure is unquestionably civil. Culp v. Department of
Public Safety, 288 So.2d 680 (La.App. 4th Cir. 1974); Gardner v. State,
Department of Public Safety, 198 So.2d 184 (La.App. 3rd Cir. 1967).
Moreover, the revocation of license under R.S. 32:414 also constitutes
a civil sanction, in certain circumstances, against motorists who are
convicted of driving while intoxicated. Harrison v. State, Department
of Public Safety, 298 So.2d 312 (La.App. 4th Cir. 1974).
Although due process is required before a driver's license may be
revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90
(1971); Smith v. Department of Public Safety, 254 So.2d 515
(La.App.4th Cir. 1971), it does not necessarily follow that the revocation
of a license constitutes criminal punishment. On the contrary, the
revocation of one's license to operate a motor vehicle under the habitual
offender law does not constitute punishment. Rather, it is a civil
measure considered necessary by the Legislature to adequately provide
for public safety. It is a finding by a court that the person in question is
no longer fit to enjoy the privilege of driving a motor vehicle. The result
of the finding is to deny the person the right to drive on the public
highways of the state; he suffers no loss of liberty, no incarceration nor
fine.
We hold therefore that the district attorney's petition to have
defendant declared an habitual offender under the Motor Vehicle
Habitual Offender Law, with the attendant minimum five year
revocation of driving privileges, is a civil proceeding.
Id. at 430. (footnote omitted).
Later, in Butler v. Department of Public Safety and Corrections, 609
So.2d 790 (La.1992), the supreme court held a driver’s license suspension is a civil
matter. The court “conclude[d] that a driver’s license suspension is a remedial
measure which attempts to protect society from the hazards posed by drunk drivers
by removing the driving privileges of those who have been convicted of driving while
intoxicated.” Id. at 796.
4
In State v. Sonnier, 95-1103 (La.App. 3 Cir. 8/28/96), 679 So.2d 1011,
we were asked to determine whether prosecuting someone for driving while
intoxicated after their driving privileges had been administratively suspended
constituted double jeopardy. In our opinion, we wrote:
[United States v.] Ursery [518 U.S. 267, 116 S.Ct. 2135 (1996)]
reaffirmed and adopted the analytical framework announced in United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099,
79 L.Ed.2d 361 (1984). A two-part test is used. First, are the
proceedings intended to be criminal or civil in nature? Second, are the
proceedings so punitive in form and effect as to render them criminal,
despite legislative intent to the contrary? To satisfy the latter prong of
the two-part test, the "clearest proof" is necessary to show that the
sanction is criminal and not civil. Ursery,[518] U.S. at [289], 116 S.Ct.
at 2147-48.
The answer to the initial inquiry is simple. Butler stated that "a
driver's license suspension is a civil, not punitive, measure." Id. at 795.
Having so concluded, where, then, is the "clearest proof" that the
suspension proceedings may not legitimately be viewed as civil in
nature and that they are, in fact, criminal? We have examined the record
and the statutes, La.R.S. 32:667 and 668, and have not discerned the
existence of that "clearest proof." Ursery does not lend guidance to
what constitutes "clearest proof." Like Ursery, however, we have to
admit that ". . . the fact that a [driver's license suspension] has some
connection to a criminal violation is far from the 'clearest proof'
necessary to show that a proceeding is criminal." Id. at [292], 116 S.Ct.
at 2149.
The defendants submit attractive arguments which suggest that
these suspension proceedings are not remedial and are the functional
equivalent of a criminal proceeding. For example, La.R.S. 32:667 and
668 permit one who transgresses the statutory provisions to drive under
a temporary permit for a period not exceeding thirty days and to obtain
a restricted license once certain conditions are met. Additionally, under
La.R.S. 32:415.1, a transgressor may also be eligible for an economic
hardship license. The proceedings, the defendants argue, therefore, do
not accomplish the objective of removing an intoxicated driver from the
state's highways. Certainly, these are punitive effects. However, while
having certain punitive aspects, La.R.S. 32:667 and 668 "serve
important nonpunitive goals." Ursery, [518] U.S. at [290], 116 S.Ct. at
2148. (See Butler, 609 So.2d at 792, 796-797 for a discussion of these
nonpunitive goals). These effects, while punitive, are not the "clearest
5
proof" necessary to show that these proceedings are criminal in nature.
Id. at 1012-13 (footnote omitted).
Likewise, contempt proceedings are considered civil, if the intent of the
court is to coerce a defendant into obeying an order, and criminal if the intent is to
punish the defendant. See Dauphine v. Carencro High School, 02-2005 (La.
4/21/03), 843 So.2d 1096.
In March 1995, the City of Broussard adopted Ordinance No. 144, which
prohibits “exotic, nude, semi-nude and topless dancing” at businesses required to hold
an alcoholic beverage permit.2 The penalties for violations range from a fifteen day
2
1 The ordinance reads in full:
2 SECTION I. RULES, REGULATIONS AND REQUIREMENTS
3 Each and every person, firm, partnership or corporation engaging in the business of selling,
4 either at retail or wholesale, any beverages of high alcoholic content or any beverages of low
5 alcoholic content, holding a valid permit authorizing such sale issued by the Town of Broussard for
6 consumption on or off the premises of such businesses, and each and every person, firm, partnership
7 or corporation engaging in any business wherein the consumption of beverages of high alcoholic
8 content or beverages of low alcoholic content are permitted on the premises of such business, though
9 not purchased therein, shall be subject to and shall abide by the following rules, regulations,
10 restrictions and requirements, to-wit:
11 A) It shall be unlawful and may be a cause for the suspension, termination or revocation
12 of any permit or license issued by the Town of Broussard to any person, firm,
13 partnership or corporation, if such person, firm, partnership or corporation allows
14 exotic, nude, semi-nude, or topless dancing in or near the business premises where
15 alcoholic beverages are sold or consumed. For purposes of this subsection, “exotic,
16 nude, semi-nude or topless dancer” is defined as a person of either gender hired or
17 in any way compensated, whether by salary, commission, gratuities from customers,
18 or otherwise, to dance, gyrate, twist or otherwise engage in any other physical
19 performance in a nude condition in or on any business premises required to possess
20 an alcohol beverage permit; and “nude condition” is defined as the display or
21 exposure, with less than a full opaque covering, of any portion of a person’s genitals,
22 pubic area, buttocks or that portion of the breast lower than the upper edge of the
23 areola.
24 SECTION II. VIOLATIONS AND PENALTIES
25 A) In addition to the penalties otherwise provided by law, upon the first conviction of
26 violating any of the provisions of this ordinance shall cause the violator’s Certificate
27 of Qualification and the permits required by Ordinance No. 84, as they apply to
6
suspension of the “Certificate of Qualification and the permits required by Ordinance
No. 84, as they apply to alcohol beverage permits” to revocation of the certificate and
permits depending on the number of “conviction[s].”
The purpose of the ordinance is to promote the protection of the citizens
and to maintain peace, which could be both a civil and criminal objective; however,
violators suffer no loss of liberty, incarceration, or fine. In that regard, these
proceeding are civil in nature. Further, we are guided by La.R.S. 33:4785(A)
(footnotes omitted), which states:
Any municipality may suspend or revoke within the corporate limits and
any police jury or other governing authority of a parish may suspend or
revoke within the limits of the parish, permits issued to retail dealers in
beverages having an alcoholic content of more than six percent by
volume for causes set forth in R.S. 26:88, 26:89; and may suspend or
revoke permits issued to such retail dealers in beverages having an
alcoholic content of not more than six percent by volume for causes set
forth in R.S. 26:285, 26:286.
The causes set forth in La.R.S. 26:903 and 26:2864 encompass the type of activity
1 alcohol beverage permits, shall be suspended for a period of fifteen (15) days,
2 commencing the day following the final Judgment of said conviction.
3 B) In addition to the penalties otherwise provided by law, upon the second conviction
4 of violating any of the provisions of this ordinance, the violator’s Certificate of
5 Qualification and the alcohol beverage permits required by law shall be suspended
6 for a period of thirty (30) days, commencing the day following the final Judgment of
7 said conviction.
8 C) In addition to the penalties otherwise provided by law, upon the third or subsequent
9 conviction of violating any of the provisions of this ordinance, the violator’s
10 Certificate of Qualification and permits required by Ordinance No. 84 of the
11 Broussard Code of Ordinances shall be revoked, effective the date following the final
12 Judgment of said conviction.
3
Title 26 of the Louisiana Revised Statutes of 1950, Liquors-Alcoholic Beverages, was
amended and reenacted by Acts 1987, No. 696. La.R.S. 26:88 and 89 are now La.R.S. 26:90 and
91.
4
Acts 1987, No. 696 also changed La.R.S. 26:285 and 286 to La.R.S. 26:286 and 287.
7
prohibited by the City of Broussard’s ordinance. Review of cases in which a permit
has been suspended or revoked is provided for in La.R.S. 33:4788, which reads:
The holder of the permit who is aggrieved by a decision of the
governing body of the municipality or parish or a municipal alcoholic
beverage control board to suspend or revoke his permit, may within ten
days of the notification of the decision take a devolutive appeal to the
district court having jurisdiction of his place of business and on such
appeal the trial shall be de novo. Within ten calendar days from the
signing of the judgment by the district court the municipality or parish
governing authority, a municipal alcoholic beverage control board or the
holder of the permit, as the case may be, may devolutively appeal from
the judgment of the district court to the court of appeals as in ordinary
civil cases.
Accordingly, this matter shall proceed as a civil appeal.
TRIAL DE NOVO
Watkins claims the district court should have granted him a trial de novo
as required by La.R.S. 13:1896. The City contends Watkins stipulated to the facts in
the magistrate’s court and never requested a trial on the merits5 either in the
magistrate court or the district court. The City additionally notes that Watkins did not
object to the district court issuing a ruling on the record and that he actually prepared
the judgment for the district court’s signature. The City also argues that the only
defenses involved legal issues and Watkins offered no facts which were not contained
in the record. Finally, the City argues Watkins, who claims he is not the license
holder, will suffer no loss as a result of the conviction because he has no license to
suspend.
5
We cannot tell from the record before us whether Watkins was convicted or pled guilty to
the violation. However, in State v. Fontenot, 535 So.2d 433 (La.App. 3 Cir. 1988), this court held
that a defendant is entitled to a trial de novo even if he pled guilty.
8
We find that, under either La.R.S. 13:1896 or 33:4788, Watkins was
entitled to a trial de novo by the district court. La.R.S. 13:1896 requires appeals from
mayor’s court and justice of the peace courts to be tried de novo, but this is not a
statutory requirement for appeals of city, parish, and municipal court judgments. The
minutes indicate the matter was heard by the Broussard Magistrate Court and the
order for appeal to the district court is signed by Carol Spell, Magistrate Judge.
Accordingly, the Broussard Magistrate Court is a mayor’s court. See La.Code
Crim.P. art. 931; La.R.S. 33:441; La.R.S. 33:441.26; and City of Kenner v. Marquis,
98-418 (La.App. 5 Cir. 6/4/98), 715 So.2d 85, writ denied, 98-1806 (La. 10/16/98),
726 So.2d 907.
As additional support for his position that he was entitled to a trial de
novo, Watkins cites North v. Russell, 427 U.S. 328, 96 S.Ct. 2709 (1976). In North,
the Supreme Court held that a two-tier court system in which criminal cases are heard
first by a nonlawyer police court judge, when a later trial de novo is available, does
not deny a defendant due process. The City contends that North is inapposite because
in Louisiana, a mayor’s court magistrate must be a licensed attorney. In the City of
Broussard, at the mayor’s request, the board of aldermen are to appoint an attorney
to serve as court magistrate. The magistrate is to preside over the mayor’s court at
the request of the mayor. Although the Broussard magistrate is an attorney, as
suggested by the City, this court has found that an accused is, nevertheless, entitled
to a trial de novo:
LSA-R.S. 33:441, which provides for the establishment of
mayor's courts, provides in Subparagraph B that the board of aldermen
may appoint an attorney, upon request of the mayor, who may serve in
the stead of the mayor as magistrate of the mayor's court with all the
9
power and authority of the mayor. This authority is specific in the case
of the Town of Cottonport. LSA-R.S. 33:441.8. The case sub judice
was heard by and acted upon by an attorney magistrate, so the magistrate
was presumptively qualified to fulfill a judicial role. However, it is not
required that a board of aldermen appoint an attorney. Therefore, a
mayor acting as magistrate may possibly not have the legal training and
qualifications one would have to have in order to accord accuseds who
appear before the mayor's courts those constitutional rights to which
they are entitled. This court in Broussard v. Town of Delcambre, 458
So.2d 1003 (La.App. 3d Cir.1984) found that no constitutional
violations occur when an accused, subject to possible imprisonment, is
tried before a non-lawyer magistrate when a later trial de novo is
available. In order to give this principle full effect we conclude that it
should apply to all criminal cases emanating from mayor's courts
whether or not the magistrate is a trained attorney and regardless of
whether the conviction and sentence resulted from trial or the entry of
a plea of guilty.
State v. Fontenot, 535 So.2d 433, 438-39 (La.App. 3 Cir. 1988).
While we are cognizant that Fontenot involves a criminal case, for the
same reasons espoused therein, the protection of the defendant’s constitutional rights,
we hold that a defendant in a civil proceeding in mayor’s court is entitled to a trial de
novo. Thus, this case is remanded to the district court for further proceedings.
PROOF BEYOND A REASONABLE DOUBT
Watkins contends the district court erred in finding the City proved its
case beyond a reasonable doubt. He notes that the district court referred to incident
reports and minutes of court, but did not refer to the actual trial transcript because a
proper transcript was not prepared in the case.6 In light of our decision that the case
be remanded for a trial de novo in the district court, this assignment of error is
rendered moot.
6
The City claims the record contains a transcript of the “proceedings in the magistrate court,
wherein all relevant evidence is included.” The transcript referred to by the City is the transcript of
the March 27, 2003 hearing on motions, not the trial transcript.
10
CONSTITUTIONALITY OF THE ORDINANCE
Watkins contends the district court did not consider his motions
concerning the constitutionality of Ordinance 144, noting that the judgment contains
no discussions of this issue. We note that the district court’s ruling does not mention
the challenge to the constitutionality of the ordinance. We also note that there is no
pleading challenging the constitutionality of the ordinance contained in the record
before us.
In State v. Williams, 02-0898, 02-1030, p. 7 (La.10/15/02), 830 So.2d
984, 988, the supreme court stated:
The general rule established by this Court is that issues not
submitted to the trial court for decision will not be considered by the
appellate court on appeal. Constitutional issues are no exception. Vallo
v. Gayle Oil Co., 94-1238 (La.11/30/94), 646 So.2d 859. This court has
often cited Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308,
1311 (La.1984), as authority when not confronting claims of
unconstitutionality where the claim is not the basis for this Court
granting of the writ and the issue was not specifically pled in the trial
court. Id. at 863. The constitutionality of the statute was clearly not the
central focus of any hearing and the trial record does not contain any
arguments on the topic. The only mention of the constitutionality of the
statute was on appeal. Accordingly, we pretermit defendant's
constitutional challenge as he failed to first raise the issue in the trial
court.
In the present case, since there is no indication that the challenge to the
constitutionality of the ordinance was raised in the district court, we will not address
that issue.
CONCLUSION
Initially, we find that this case is civil, and we considered it as an
appeal. After having done so, we reverse the district court’s ruling and remand the
case to the district court for a trial de novo. The costs of this appeal are assessed to
11
the plaintiff-appellee, the City of Broussard.
REVERSED AND REMANDED.
12