State of Louisiana v. in the Interest of K.S.

STATE OF LOUISIANA * NO. 2024-C-0060

VERSUS *
COURT OF APPEAL
IN THE INTEREST OF K.S. *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
JUVENILE COURT ORLEANS PARISH
NO. 2024-028-03-DQ-A, SECTION “E”
HONORABLE Desiree Cook-Calvin, JUDGE
Derek Russ, Hearing Officer
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Daniel L. Dysart)

Jerome Matthews
Matthews Law Office, LLC
1901 Manhattan Blvd, Bldg D
Harvey, LA 70058

COUNSEL FOR RELATOR/DEFENDANT/K.S.

Jason Rogers Williams
District Attorney
Parish of Orleans
Brad Scott
Assistant District Attorney
Parish of Orleans
619 South White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA

WRIT GRANTED IN PART; REMANDED
February 9, 2024

TFL

RLB

DLD Relator, K.S., a juvenile remaining in custody, seeks review of the denial of

four motions, the majority of which challenge the legality of a Hearing Officer

presiding over juvenile matters.

After our review, we find that the proper procedure for challenging the

recommendations of the Hearing Officer were not followed. Because the

application for supervisory review was filed within the ten-day period for objecting

to the recommendations, we exercise our supervisory jurisdiction to grant the writ

in part, for the limited purpose of remand. We remand the matter for consideration

of the application as a written and filed objection to the Hearing Officer’s

recommendations and further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This application for supervisory review seeking expedited consideration

arises from criminal activities that occurred on July 17, 2022. On or about July 17,

2022, K.M., escaped from the Bridge City Detention Center, allegedly stole a Ford

F550 belonging to Beverly Industries, and picked up K.S. While driving around

New Orleans, K.M. drove to the intersection of Loyola and Nashville Avenues,

wherein he allegedly exited the truck and shot a man. K.M. and K.S. then drove

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away in the victim’s Toyota RAV4. The RAV4 was spotted by Louisiana State

Troopers, who initiated a stop. The RAV4 fled from officers at a high rate of

speed until it crashed into a utility pole. K.M. and K.S. ran from the vehicle, but

both were apprehended and taken into custody.

K.S. was charged in Orleans Parish Juvenile Court (“OPJC”) with being a

principal to aggravated second degree battery, armed robbery, unauthorized use of

a motor vehicle (RAV4), and resisting an officer. The State entered a nolle

prosequi as to these charges in OPJC. The State filed a bill of indictment in

Orleans Parish Criminal District Court. The indictment was filed 59 days after the

arrest of K.S. Counsel for K.S. filed a Motion to Quash the indictment, which the

trial court granted. The matter is now pending appeal in this Court, 2023-KA-

0586.

On January 25, 2024, counsel for K.S. filed a Motion for Immediate Release

pursuant to La. C.Cr.P. art. 913. The motion was granted on January 29, 2024.

However, on or around January 25, 2024, the New Orleans Police Department

conducted a follow-up investigation into the criminal conduct of July 17, 2022.

The NOPD discovered previously undocumented and uncharged criminal acts.

Namely, an arrest warrant was issued for K.S. for violations of La. R.S. 14:25/La.

R.S. 14:110 - accessory after the fact to simple escape, and La. R.S. 14:68.4 -

unauthorized use of a movable (Ford 550). As a result, K.S. was booked into the

Orleans Parish Juvenile Justice Center on January 25, 2024.

On January 29, 2024, K.S. appeared for a continued custody hearing with a

Hearing Officer. Prior to the start of the hearing, K.S. filed four motions: 1)

Motion to Disqualify Hearing Officer From Determining Motions; 2) Motion to

Quash Arrest Warrant; 3) Motion for Immediate Release Pursuant to Louisiana

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Children’s Code Article 814; and 4) Motion to Objecting to Hearing Officer

Presiding Over Hearing Pursuant to Louisiana Children’s Code Article 819. The

Hearing Officer recommended denying the motions, the finding of probable cause,

and a bond of $30,000.00 with numerous conditions. K.S. immediately sought

supervisory relief.

On application for supervisory review, K.S. objects to the use of a Hearing

Officer to preside over these proceedings, particularly the Motion to Disqualify,

and maintains that the Hearing Officer erred by denying all four motions.

HEARING OFFICERS

As an initial matter and, prior to examining whether the juvenile court erred,

we examine the creation of and authority granted to Hearing Officers.

OPJC was faced with a potential workload crisis, which required a new

approach to managing their dockets. The OPJC en banc searched for solutions and

stated: “Orleans Parish Juvenile Court (OPJC) Judges are experiencing an

increased caseload in children in need of care, families in need of services, and

juvenile delinquency cases, and considering Juvenile filings in Louisiana’s four

specialized juvenile courts have increased by 28.60% from 8,863 in 2021 to 11,398

in 2022.”

The per curiam submitted by the OPJC Judge and Hearing Officer provided

a background look at the solution confected as follows:

On October 18, 2023, the Orleans Parish Juvenile
Court (OPJC) Judges, En Banc, adopted Hearing Office
Procedures and appointed Derek Russ as Hearing Officer
pursuant to La.Ch.C. Art. 423, and promulgated certain
procedures by which the hearing officer shall conduct
preadjudication hearings and resolve matters preliminary
to adjudication in any proceeding authorized by the
Louisiana Children’s Code. The Orleans Parish District
Attorney Jason Rogers Williams and Louisiana Center

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for Children’s Rights Co-Executive Director Aaron
Clark-Rizzio, after review of the Hearing Office
Procedures and pre-implementation meeting with OPJC,
had no objections to and support the appointment of
OPJC’s hearing officer.
OPJC’s Hearing Office has conducted one hundred
and twelve (112) preadjudication hearing in 2023, of
which there were only three (3) written objections filed.
Fifty-one (51) of those cases were delinquency,
preadjudication, continued custody proceedings. OPJC’s
Hearing Office reviewed 180 warrants. 158 reviews were
requested by law enforcement and 22 judicial reviews
were requested by the District Attorney’s Office.

Furthermore, Hearing Officers are authorized by the Louisiana Legislature.

La. Ch.C. art. 423 provides:

A. (1) The judge or judges of the court may appoint one
or more hearing officers to hear child support and
support-related matters and to conduct preadjudication
hearings and resolve matters preliminary to adjudication
in any proceeding authorized by this Code. The judge or
judges of the court may request that the clerk of court
supply additional personnel, subject to approval of the
local governing authority, to support the functions of the
additional hearing officers, the cost of which shall be
paid by the court.

(2) Notwithstanding any other provisions to the contrary,
the judge or judges of the court may authorize one or
more hearing officers to accept any agreement reached in
a mediation ordered by the court, pursuant to Chapter 6
of Title IV of this Code, regardless of the stage of the
case which said agreement would adjudicate. In
accepting the mediated agreement from the parties, the
hearing officer shall be authorized to perform any duties
described in Paragraph C of this Article, including but
not limited to making such findings as may be required
by law.

(3) No state funds shall be expended to cover the cost of
hearing officers or additional personnel provided by the
clerk of court.

B. The hearing officer shall be a full-time or part-time
employee of the court and shall be an attorney who has
practiced for five or more years before the juvenile court
and is a member in good standing of the Louisiana State

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Bar Association. If a part-time employee, the limitations
upon the hearing officer’s practice of law shall be
resolved by local rules.

C. The hearing officer shall perform such duties as are
assigned in accordance with local rules not inconsistent
with this Article or with the constitution and laws of the
state, including:

(1) Administering oaths.
(2) Compelling the attendance of witnesses and issuing
subpoenas.
(3) Taking testimony.
(4) Making a record of the hearings.
(5) Summarizing testimony, making findings of fact, and
submitting a written recommendation to the court
concerning the disposition of the assigned matter.
(6) Hearing and making recommendations on all
restraining orders and protective orders filed in
accordance with Articles 1569 and 1570.

D. In the performance of any judicial assignment, the
hearing officer shall be bound by the provisions of this
Code governing the authority and responsibility of a
juvenile court judge.

E. The hearing officer shall file his report and
recommendations with the court, and a copy shall be
promptly provided to all parties or their counsel of record
either at the hearing or by mail.

F. Within ten days after transmittal of the hearing
officer’s report and recommendation, any aggrieved party
may serve and file objections in writing to findings or
recommendations. The court will then hear the case de
novo and enter judgment. For hearings utilizing the
expedited process for establishment of paternity and
establishment or enforcement of support, the delay for
serving and filing objections shall be established pursuant
to local rule as provided in R.S. 46:236.5.

G. If no objection has been timely filed and if the court
approves the hearing officer’s findings and
recommendations, the court shall enter the proposed
order as the judgment of the court which thereafter may
be appealed in the same manner as any other appeal from
any other judgment of the court.

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VALIDITY OF HEARING OFFICERS

K.S.’s assertions in the motions filed and pleadings filed with this Court

attempt to challenge the constitutionality of La. Ch.C. art. 423 and the validity of

the Hearing Officers duties as assigned by OPJC.

“[C]ourts are generally reluctant to address the constitutionality of

legislation unless required by the particular case and issue before them.” State v.

Hatton, 07-2377, p. 13 (La. 7/1/08), 985 So. 2d 709, 718 (citing State v. Schoening,

00-0903, p. 3 (La. 10/17/00), 770 So. 2d 762, 764). “Statutes are generally

presumed to be constitutional and the party challenging the validity of the statute

bears the burden of proving it is unconstitutional.” Id., 07-2377, p. 13, 985 So. 2d

at 719. “[I]f a party wishes to challenge the constitutionality of a statute, the party

must do so properly.” Id., 07-2377, p. 14, 985 So. 2d at 719.

The Louisiana Supreme Court has outlined the general process for

challenging a statute’s constitutionality as follows:

While there is no single procedure for attacking the
constitutionality of a statute, it has long been held that the
unconstitutionality of a statute must be specially pleaded
and the grounds for the claim particularized. State v.
Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762,
764 (citing Vallo v. Gayle Oil Co., 94-1238, p. 8
(La.11/30/94), 646 So.2d 859, 864–65). This Court has
expressed the challenger’s burden as a three step
analysis. First, a party must raise the unconstitutionality
in the trial court; second, the unconstitutionality of a
statute must be specially pleaded; and third, the grounds
outlining the basis of unconstitutionality must be
particularized. Vallo v. Gayle Oil Co., Inc., 94–1238, p. 8
(La.11/30/94), 646 So.2d 859, 864–865. The purpose of
these procedural rules is to afford interested parties
sufficient time to brief and prepare arguments defending
the constitutionality of the challenged statute. State v.
Schoening, 00–0903, p. 3 (La.10/17/00), 770 So.2d 762,
764 (citing Vallo v. Gayle Oil Co., Inc., 94–1238, p. 8
(La.11/30/94), 646 So.2d 859, 865). The opportunity to
fully brief and argue the constitutional issues provides

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the trial court with thoughtful and complete arguments
relating to the issue of constitutionality and furnishes
reviewing courts with an adequate record upon which to
consider the constitutionality of the statute. Id.
* * *
In addition to the three step analysis for
challenging the constitutionality of a statute, the specific
plea of unconstitutionality and the grounds therefor must
be raised in a pleading. See State v. Schoening, 00–0903,
p. 4 (La.10/17/00), 770 So.2d 762, 765, citing Williams v.
State, Dept. of Health and Hospitals, 95–0713, p. 6
(La.1/26/96), 671 So.2d 899, 902 (recognizing that
“Louisiana jurisprudence requires that the
constitutionality of a statute be specially pleaded in a
petition, exception, written motion, or answer and that
the grounds be particularized, so that the parties are given
sufficient time to brief and prepare arguments regarding
their position on a constitutional question.”); State v.
Campbell, 263 La. 1058, 270 So.2d 506 (1972)(wherein
this Court refused to consider grounds of
unconstitutionality not raised in the defendant’s Motion
to Quash); State v. Herring, 211 La. 1083, 31 So.2d 218,
219–220 (1947) (“This Court has consistently refused to
consider an attack on the constitutionality of a law where
such issue is not raised by the pleadings. The attack on
the constitutionality of a law must be urged by special
plea setting forth therein grounds on which it is claimed
that the law is unconstitutional.”).

Hatton, 07-2377, pp. 14-16, 985 So. 2d at 719-20.

These procedures were not followed in the instant action. Therefore,

presuming La. Ch.C. art. 423 is valid, we turn to examining the Hearing Officer’s

recommendations and the orders of the OPJC Judge.

HEARING OFFICER RECOMMENDATIONS

Section (E) of La. Ch.C. art. 423 provides that “[t]he hearing officer shall

file his report and recommendations with the court, and a copy shall be promptly

provided to all parties or their counsel of record either at the hearing or by mail.”

The OPJC directives strictly provide that the Hearing Officer’s report and

recommendations “shall not be provided to the Duty Judge hearing the case.” The

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directives further state that the Hearing Officer’s recommendations are considered

temporary orders.

In order to seek review of the Hearing Officer’s recommendations, the

aggrieved party is required to comply with the following procedure:

(F) Within ten days after transmittal of the hearing
officer’s report and recommendation, any aggrieved party
may serve and file objections in writing to findings or
recommendations. The court will then hear the case de
novo and enter judgment. For hearings utilizing the
expedited process for establishment of paternity and
establishment or enforcement of support, the delay for
serving and filing objections shall be established pursuant
to local rule as provided in R.S. 46:236.5.

Only then, “[i]f no objection has been timely filed and if the court approves the

hearing officer's findings and recommendations, the court shall enter the proposed

order as the judgment of the court which thereafter may be appealed in the same

manner as any other appeal from any other judgment of the court.” La. Ch.C. art.

423(G).

Even though the Hearing Officer repeatedly outlined the objection

procedures with counsel for K.S., no objections were filed. Further, counsel for

K.S. specifically rejected waiving the ten-day time delay more than once, as

reflected in the hearing transcript.

In the present matter, K.S.’s continued custody hearing occurred on January

29, 2024. The Hearing Officer’s recommendations were not read and signed until

January 30, 2024. However, the OPJC Judge signed the four orders denying K.S.’s

motions on January 29, 2024, in contravention with the procedures outlined in La.

Ch.C. art. 423. Therefore, we find the orders signed prematurely by the OPJC

Judge are invalid. Because the application for supervisory review was filed within

ten days of the Hearing Officer’s recommendations, we remand the matter to OPJC

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to treat the application for supervisory review as a written and filed objection to the

Hearing Officer’s recommendations.1

DECREE

For the above-mentioned reasons, we find the proper procedural

requirements for challenging the validity of a Hearing Officer’s duties were not

followed. Further, we find the OPJC Judge prematurely signed the four orders

denying K.S.’s motions in violation of La. Ch.C. art. 423. As K.S.’s application

for supervisory review was filed within ten days of the Hearing Officer’s

recommendations, we grant the writ for the limited purpose of transferring the

matter to OPJC for consideration of the application as a written and filed objection

to the recommendations. The matter is remanded for further proceedings

consistent with this opinion.

WRIT GRANTED IN PART; REMANDED

1 Appellate courts perform similar conversions. See Matter of Succession of Daison, unpub., 21-
285 (La. App. 5 Cir. 6/15/21), 2021 WL 2445782 (“We therefore grant this writ for the limited
purpose of transferring it to the district court, with instructions to the district court to treat
relator's timely-filed notice of intent as a timely-filed motion for appeal.”). See also
Delahoussaye v. Tulane Univ. Hosp. & Clinic, 12-0906 (La. App. 4 Cir. 2/20/13), 155 So. 3d
560, 562 (appellate courts may convert appeals to applications for supervisory review).

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