Connie Hitchcock v. State of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1597

CONNIE HITCHCOCK

VERSUS

STATE OF LOUISIANA, ET AL.

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 76183
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

**********
ELIZABETH A. PICKETT
JUDGE
**********

Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Peters, J., dissents and assigns written reasons.

Michael B. Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
Counsel for Plaintiff/Appellant:
Connie Hitchcock

John J. Rabalais
Janice B. Unland
David S. Pittman
Heather W. Blackburn
Rabalais, Unland & Lorio
5100 Village Walk, #300
Covington, LA 70433
Counsel for Intervenor/Appellee:
Heritage Manor Nursing Home

Tina Vicari Grant
Louisiana Dept. of Justice
P. O. Box 94005
Baton Rouge, LA 70804-9005
Counsel for Defendant/Appellee:
State of Louisiana

PICKETT, J.

Plaintiff, Connie Hitchcock, appeals a judgment of the district court dismissing

her challenge to the constitutionality of La.R.S. 23:1208 as premature. We affirm the

judgment of the district court.

FACTS

The plaintiff filed suit in the district court ,seeking the following: 1) to have

La.R.S. 23:1208 and “more specifically” La.R.S. 23:1208(E) declared

unconstitutional and 2) to have the court issue an injunction preventing the State from

enforcing the statute. Louisiana Revised Statutes 23:1208(E) is part of the Louisiana

Workers’ Compensation Act and provides that “[a]ny employee violating this Section

shall, upon determination by workers’ compensation judge, forfeit any right to

compensation benefits under this Chapter.”

At the trial of the matter, the plaintiff stipulated that her claim had yet to be

heard by a workers’ compensation judge. Based upon that stipulation, the trial judge

dismissed her petition as premature. From that dismissal, the plaintiff appeals raising

eight “Issues For Review,” the first being: “Is the petition to declare LSA R.S.

23:1208 unconstitutional premature?” As we answer that question in the affirmative,

we have no need to address the other seven “issues” raised.

In effect, the plaintiff is seeking a declaratory judgment. In Church Point

Wholesale Beverage Co, v. Tarver, 614 So.2d 697 (La.1993), the Louisiana Supreme

Court expounded on the law applicable to declaratory judgments as follows:

Louisiana Code of Civil Procedure art. 1871 authorizes the
judicial declaration of “rights, status, and other legal relations whether
or not further relief is or could be claimed.” Article 1872 designates
who can bring such an action:

A person ... whose rights, status, or other legal
relations are affected by a statute ... may have determined
any question of construction or validity arising under the ...

statute ... and obtain a declaration of rights, status, or other
legal relations thereunder.

The jurisprudence has restricted the application of the articles in
that courts will only act in cases of a present, justiciable controversy and
will not render merely advisory opinions. Hainkel v. Henry, 313 So.2d
577, 578 (La.1975). In fact, the constitution implicitly prohibits the
rendering of advisory opinions. Aucoin v. Dunn, 233 So.2d 530, 531
(La.1970); Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118
So.2d 458, 461 (1960); State v. Fant, 43 So.2d 217, 220 (La.1949).

In State v. Board of Supervisors, 228 La. 951, 84 So.2d 597,
599-600 (1955) this court discussed the effect on Louisiana law of the
Uniform Declaratory Judgments Act, the precursor to the articles on
declaratory judgment in the Code of Civil Procedure.

Ever since 1810, it has been fundamental in the law
of Louisiana that courts sit to administer justice in actual
cases.... This principle has been strictly adhered to
throughout the years and, in reality, is determinative of the
matter of the jurisdiction of our courts, original and
appellate, as defined by Sections 35, 29 and 10 of Article
7 of the Constitution.

Section 35 of Article 7 of the Constitution vests the
district courts throughout the State with original
jurisdiction in all civil matters “regardless of the amount in
dispute.” Thus, in order for the court to become seized of
jurisdiction in the first instance, there must be a dispute or
controversy over some matter or right in which the
opposing parties have an interest. For one to sue, his
interest must be real and actual....

The Uniform Declaratory Judgments Act has not had
the magical effect of changing the above stated basic
tenets. In truth, to construe the statute as extending
jurisdiction to the courts to validate legislative action, or
otherwise render advisory opinions, would effect an
unconstitutional enlargement of the grant of judicial power
which is restricted to real controversies.

... [I]t is settled that courts of Louisiana are without
power to render judgments over moot and abstract
propositions and that a litigant not asserting a substantial
existing legal right is without standing in court.

... [I]n order for an action to be entertained under the
Act, it must be based on an actual controversy....

2

84 So.2d at 599-600 (citations omitted) (footnotes omitted).

Id. at 701-02 (footnote omitted).

Although, the record established that a claim for benefits has been filed by the

plaintiff with the Office of Workers’ Compensation, she stipulated at trial that the

claim has not been litigated. Thus, at this point in time, she has not been adversely

impacted by the statute she seeks to have declared unconstitutional. In Ring v. State

Department of Transportation and Development, 02-1367, pp. 4-7 (La. 1/14/03), 835

So.2d 423, 426-28, the supreme court ruled that plaintiff’s motion seeking a

declaration that a statute was unconstitutional was premature for lack of standing,

stating:

We have repeatedly and consistently held that courts should
refrain from reaching or determining the constitutionality of legislation
unless, in the context of a particular case, the resolution of the
constitutional issue is essential to the decision of the case or
controversy. State v. Fleming, 2001-2799 (La.6/21/02), 820 So.2d 467,
470; Cat's Meow, Inc. v. City of New Orleans Through Dept. of
Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1199; Louisiana
Associated Gen. Contractors, Inc. v. New Orleans Aviation Bd., 97-0752
(La.10/31/97), 701 So.2d 130, 132; Cameron Parish Sch. Bd. v.
AcandS, Inc., 96-0895 (La.1/14/97), 687 So.2d 84, 87; White v. West
Carroll Hosp., Inc., 613 So.2d 150, 157 (La.1992). Further, our
jurisprudence counsels that the practice of courts is “never to anticipate
a question of constitutional law in advance of the necessity of deciding
it.” Matherne v. Gray Ins. Co., 95-0975 (La.10/16/95), 661 So.2d 432,
434; Communist Party of U.S. v. Subversive Activities Control Bd., 367
U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961) (citing Liverpool, New York
& Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 5 S.Ct. 352, 28
L.Ed. 899 (1885)); Arizona v. California, 283 U.S. 423, 51 S.Ct. 522,
75 L.Ed. 1154 (1931). Courts should avoid constitutional rulings when
the case can be disposed of on non-constitutional grounds. Blanchard
v. State Through Parks and Recreation Commission, 96-0053
(La.5/21/96), 673 So.2d 1000, 1002.

The rationale for this policy of judicial restraint has been said to
lie “in all that goes to make up the unique place and character, in our
scheme, of judicial review of governmental action for constitutionality.”
Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549,
571, 67 S.Ct. 1409, 1421, 91 L.Ed. 1666 (1947). Its foundations,

3

longstanding and firmly rooted in our jurisprudence, derive from “the
delicacy of that function, particularly in view of possible consequences
for others stemming also from constitutional roots; the comparative
finality of those consequences; the consideration due to the judgment
of other repositories of constitutional power concerning the scope of
their authority; the necessity, if government is to function
constitutionally, for each to keep within its power, including the courts;
the inherent limitations of the judicial process, arising especially from
its largely negative character and limited resources of enforcement;
withal in the paramount importance of constitutional adjudication in our
system.” Id. Courts should both respect legislative enactments and at
the same time seek to provide substantial remedies to wrongly aggrieved
persons. It is the balancing of these oftentimes competing directives that
leads to the general rule: a judge should not judicially declare a statute
unconstitutional unless it is essential to the decision of a case or
controversy. Board of Com'rs of Orleans Levee Dist. v. Connick,
94-3161 (La.3/9/95), 654 So.2d 1073, 1076.

The ripeness doctrine is a tool designed to determine when
judicial review is appropriate. As we explained in Matherne v. Gray
Ins. Co., 95-0975 (La.10/16/95), 661 So.2d 432, 435: “Generally, the
ripeness doctrine is viewed as being both constitutionally required and
judicially prudent. ‘The prudential restrictions result from the fact that
most courts would rather avoid speculative cases, defer to finders of fact
with greater subject matter expertise, decide cases with fully-developed
records, and avoid overly broad opinions, even if these courts might
constitutionally hear a dispute.’ ” Matherne, supra, quoting Gregory M.
Stein, Regulatory Takings and Ripeness in the Federal Courts, 48
Vand.L.Rev. 1, 11 (1995). In Matherne, we identified two elements that
are relevant in establishing the ripeness of a case: (1) the hardship to the
parties if a court does not decide; and (2) the fitness of the issues for
decision. Id. If a party will be significantly injured by a court's failure
to decide an issue quickly, if the record is well developed and the risk
of a speculative or overly broad opinion is thereby lessened, then the
issue is more likely fit for decision. Id. On the other hand, Louisiana
has never had a provision authorizing the court to issue advisory
opinions, and, until a controversy becomes concrete and focused, it is
difficult for the court to evaluate the practical merits of the position of
each party. “If a record is concrete rather than abstract in nature, the
Court may find a way of interpreting the statute to avoid or minimize the
constitutional issue.” RONALD D. ROTUNDA & JOHN E. NOWAK,
TREATISE ON CONSTITUTIONAL LAW § 2.13 (2d. ed.1992).
Moreover, there is a possibility that if the court waits for an actual
controversy, the whole constitutional problem may be eliminated by
later developments. Matherne, 661 So.2d at 436.

While there is no doubt that this Court has the power and
authority to address the constitutional issue presented by the district

4

court's ruling in this case, we are not required to do so. We are only
obligated to rule if the procedural posture of the case and the relief
sought by the appellant demand that we do so. Matherne, 661 So.2d at
436. In this instance, we find that the case is not in the proper
procedural posture for a ruling on the constitutional issue.

We, as the supreme court did in Ring, “find that the case is not in the proper

procedural posture for a ruling on the constitutional issue.” Id. Furthermore, just as

in Ring, “there is a possibility that if the court waits [. . .], the whole constitutional

problem may be eliminated by later developments,” i.e., if the workers’ compensation

judge finds that the plaintiff has not violated La.R.S. 23:1208, the issue the plaintiff

seeks to raise herein is moot. We find the issue raised by the plaintiff in this case is

not ripe for determination and refuse to consider the issue.

The plaintiff has misread La.R.S. 23:1310.3 when she argues that it required

her to filed her petition in district court and have her claim of unconstitutionality

litigated therein, even though she has not had her compensation claim tried.

Louisiana Revised Statutes 23:1310.3(F) (emphasis ours) states as follows:

(1) Any party challenging the constitutionality of any provision
of this Chapter shall specially plead such an allegation in the original
petition, [or in] an exception, [or in a] written motion, or answer, which
shall state with particularity the grounds for such an allegation.

(2) Within thirty days of the filing of any pleading raising the
issue of unconstitutionality, the party making such an allegation must
file a petition in a state district court of proper jurisdiction for purposes
of adjudicating the claim of unconstitutionality. Said filing shall be
given priority in hearing such claim not more than ten days from being
presented to the district court.

(3) Failure to follow the procedures set forth in this Section shall
bar any claim as to the unconstitutionality of any provision of this
Chapter on appeal.

Furthermore, La.Code Civ. P. art. 423(emphasis ours) specifically provides, in

pertinent part: “When an action is brought . . . before the right to enforce it has

5

accrued, the action shall be dismissed as premature, but it may be brought again after

this right has accrued.”

Accordingly, for the reasons stated above, the judgment of the trial court is

affirmed. Inasmuch as the plaintiff is a pauper, we pretermit the assessment of costs.

AFFIRMED.

6

NUMBER 04-1597

COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

CONNIE HITCHCOCK

VERSUS

STATE OF LOUISIANA, ET AL.

PETERS, J., dissenting.

I respectfully disagree with the majority opinion in this matter. The pertinent

facts are not in dispute. Ms. Hitchcock claims that on July 5, 1994, while in the

employment of the Heritage Manor Nursing Home (Nursing Home), she suffered a

work-related, compensable injury as defined by the Louisiana Workers’

Compensation Act. The Nursing Home initially paid benefits under the Act.

However, in 1996, the Nursing Home refused to pay for certain recommended

surgeries and terminated payment of Ms. Hitchcock’s weekly benefits. The Nursing

Home took this action based on its belief that Ms. Hitchcock had violated the

provisions of La.R.S. 23:1208.

On July 17, 1997, Ms. Hitchcock filed a claim for benefits in the Office of

Workers’ Compensation. In asserting her claim for benefits before the workers’

compensation judge (WCJ), Ms. Hitchcock asserted that, for various reasons, La.R.S.

23:1208 is unconstitutional. Thereafter, Ms. Hitchcock filed a petition in district

court addressing the constitutional issue. The WCJ stayed the workers’ compensation

proceedings pending disposition of the constitutional issue.

Ms. Hitchcock filed the district court action on April 25, 2001, and, after an

August 23, 2004 hearing, the district court dismissed her petition on the basis of

prematurity. Specifically, the district court concluded that, because at the time of the

hearing on the constitutional issue there had been no finding that Ms. Hitchcock had

violated La.R.S. 23:1208, any decision on that issue would be premature. The

majority affirms that decision, and, while I agree that any decision by the district

court on the constitutional issue would have been premature, the petition filed by Ms.

Hitchcock was not.

I do not disagree with the language of Ring v. State, Department of

Transportation & Development, 02-1367 (La. 1/14/03), 835 So.2d 423, quoted by

the majority. Courts should avoid deciding a constitutional issue unless the

resolution of the issue is essential to the decision of the controversy. In fact, the

district court acted correctly in not deciding the constitutional issue before the WCJ’s

decision on the merits. However, the district court erred in dismissing the

proceedings rather than staying the proceedings pending a decision by the WCJ on

the underlying issues.

If this matter had arisen in a district court proceeding rather than in a workers’

compensation proceeding, this issue would in all probability not be before us at this

stage of the litigation. The district court would simply have referred the

constitutional issue to the merits and addressed it if and when necessary. The

legislature attempted to address the problem created by the workers’ compensation

courts’ lack of subject matter jurisdiction to consider constitutional issues by enacting

La.R.S. 23:1310.3(F). That statute provides a procedure to transfer the constitutional

issue to the district court having jurisdiction. Louisiana Revised Statutes

23:1310.3(F)(1) provides that one challenging the constitutionality of a provision of

the Louisiana Workers’ Compensation Act “shall specifically plead such an

allegation in the original petition, an exception, written motion, or answer . . . .”

2

(Emphasis added.) Ms. Hitchcock complied with this provision. Louisiana Revised

Statutes 23:1310.3(F)(2) requires the party to then file an action raising the

constitutional issue in district court within thirty days of the filing of the pleading in

the workers’ compensation proceedings. Ms. Hitchcock complied with this

provision. In fact, had she not complied with both of these provisions, she would

have been unable to later raise the constitutional issue. See La.R.S. 23:1310.3(F)(3).

As stated, the district court concluded that Ms. Hitchcock’s action was

premature, yet I find no exception of prematurity in the record. Instead, the

prematurity issue was decided at a trial on the merits. As stated in Plaisance v. Davis,

03-0767, p. 6 (La.App. 1 Cir. 11/7/03), 868 So.2d 711, 716, writ denied, 03-3362 (La.

2/13/04), 867 So.2d 699, “[t]he objection of prematurity raises the issue of whether

the judicial cause of action has yet come into existence because some prerequisite

condition has not been fulfilled.” Additionally, a prematurity objection “is intended

to retard the progress of the action rather than to defeat it.” Id. Ms. Hitchcock’s

cause of action had come into existence by virtue of the fact that La.R.S. 23:1208 is

a pivotal issue in the workers’ compensation proceedings. Furthermore, the district

court and the majority have, by the decisions rendered, defeated the action rather than

simply retarded its progress.

I do not find the last sentence of La.Code Civ.P. art. 423 to be supportive of the

majority decision. It relates to the right to enforce an obligation as that term is

defined in La.Code Civ.P. arts. 421 and 422. The underlying obligation claimed by

Ms. Hitchcock in this litigation is her workers’ compensation benefits. The

constitutional issue is ancillary to that issue. Additionally, the district court suit is not

a petition for declaratory judgment as suggested by the majority. The Nursing Home

3

stopped paying benefits based on La.R.S. 23:1208. Thus, the viability of the statute

is a real issue which will become moot only if and when the WCJ determines either

that Ms. Hitchcock is not otherwise entitled to workers’ compensation benefits or that

Ms. Hitchcock did not violate the provisions of La.R.S. 23:1208.

The majority would have Ms. Hitchcock wait until after a judgment is rendered

against her in the workers’ compensation proceedings before filing any pleading to

contest the constitutionality of La.R.S. 23:1208. I fully expect that such a course of

action would be met with an argument that she had not timely raised the

constitutional issue and that therefore La.R.S. 23:1310.3(F)(3) precludes further

consideration of the issue. In enacting La.R.S. 23:1310.3(F), the legislature

specifically provided that the challenge to the constitutionality of a workers’

compensation statute may be filed as early as the original petition. It would be

difficult to imagine a situation in which a litigant would file a constitutional challenge

in the original petition of the workers’ compensation proceedings that would not be

premature under the majority’s rationale.

The last sentence of La.R.S. 23:1310.3(F)(2) also gives us guidance concerning

how to apply the established procedure under the statute. It provides that a hearing

on the constitutional issue in district court shall be given a ten-day priority setting

once the issue is “presented to the district court.” Thus, the priority setting is not

triggered by the filing of a pleading, but by the presentation of the issue to the district

court. In this case, the petition was timely filed in district court, but presentation of

the issue for adjudication should not have occurred until the WCJ ruled on the

underlying issues.

I would reverse the district court’s dismissal of Ms. Hitchcock’s petition and

4

remand the matter to the district court with instructions to stay the decision on the

constitutional issue pending a decision by the WCJ on the merits of Ms. Hitchcock’s

workers’ compensation claim. I would then require that the district court hear the

constitutional issue (if it is still a viable issue) within the ten-day framework provided

for in La.R.S. 23:1310.3(F)(2). Otherwise, Ms. Hitchcock not only stands without

a remedy on the constitutional issue, but she is also denied even a hearing on this

significant issue.

5