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Spooner v. East Baton Rouge Parish Sheriff Dep't11/8/2002
Kuhn concurs with reasons
In this case, plaintiff, Emmett Spooner I, appeals the July 10, 2001 judgment of the 19th Judicial District Court dismissing his suit with prejudice for failure to exhaust administrative remedies. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Emmett Spooner I, a prisoner in the East Baton Rouge Parish Prison, filed suit against the East Baton Rouge Parish Sheriff's Department, Deputy D. Pennington, and Warden Joseph Sabella for damages resulting from an alleged assault and battery committed by Deputy Pennington. The defendants filed an exception of failure to exhaust the administrative remedies of the Corrections Administrative Remedy Procedure (CARP), LSA-R.S. 15:1171-1179, which was granted. The trial court then dismissed plaintiff's suit with prejudice.
Plaintiff asserts on appeal that under the recent Louisiana Supreme Court decision in Pope v. State of Louisiana, 99-2559 (La. 6/29/01), 792 So.2d 713, the CARP is unconstitutional as applied to tort suits, and thus the district court erred in dismissing his suit under an unconstitutional statute.
DISCUSSION
Initially, we note that the plaintiff did not assert the unconstitutionality of LSA-R.S. 15:1171-1179 at the trial court level. While the general rule is that a litigant cannot raise the unconstitutionality of a statute or ordinance unless its unconstitutionality is specially pleaded and the grounds particularized, several exceptions to this rule have been recognized, including situations where a statute attempts to limit the constitutional power of the courts to review cases, or where the statute has been declared unconstitutional in another case, or where the statute applicable to a specific case becomes effective after the appeal is lodged in the higher court. Summerell v. Phillips, 247 So.2d 542, 599 (La. 1971). Since the statute at issue in this case has since been declared unconstitutional in another case, the plaintiff may raise the unconstitutionality of the statute for the first time on appeal.
In Pope, the Louisiana Supreme Court declared the CARP, LSA-R.S. 15:1171-1179, to be unconstitutional to the extent it allowed the Department of Corrections to exercise original jurisdiction in tort actions. Pope, 99-2559 at p. 13, 792 So.2d at 721. Pope involved a former inmate who brought a personal injury action against the Department of Corrections in district court, alleging he was seriously injured while incarcerated. Although the inmate had not first submitted his claim to the warden as required by the administrative remedy procedure adopted by the Department of Corrections under the CARP, he claimed the procedure was unconstitutional as applied to his personal injury action because it divested the district courts of original jurisdiction over a civil matter. On review, the Louisiana Supreme Court found that "the DOC officials in the administrative remedy procedure adopted pursuant to LSAR.S. 15:1711 , who take cognizance of a tort claim by an offender at the inception of the action, try the claim, and pass judgment on the law and the facts of the action, clearly are exercising original jurisdiction, to the exclusion of the district courts." Pope, 99-2559 at p. 9, 792 So.2d at 718. Furthermore, the court found that the judicial review provisions contained in LSA-R.S. 15:1177 prevent the district courts from exercising the original jurisdiction functions of finding facts in the first instance and then applying the law to the facts. Pope, 99-2559 at p. 10, 792 So.2d at 719. The court held that the CARP violated article V, ยง 16(A) of the Louisiana Constitution, which provides that "a district
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