Mitch David Bourque v. Tomas Drake

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-317

MITCH DAVID BOURQUE

VERSUS

TOMAS DRAKE, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 70380
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

James D. “Buddy” Caldwell
Attorney General
Terry Ford Hessick
Assistant Attorney General
P. O. Box 94005, Cap. Station
Baton Rouge, LA 70804-9005
Counsel for Defendant/Appellee:
State of Louisiana

Joseph R. Joy, III
Gordon J. Schoeffler
Joseph Joy & Assoc.
P. O. Box 4929
Lafayette, LA 70502
Counsel for Plaintiff/Appellant:
Mitch David Bourque

Lloyd Frederick Schroeder II
Craig E. Frosch
Usry, Weeks, & Matthews, APLC
1615 Poydras, Ste 1250
New Orleans, LA 70112
Counsel for Defendant/Appellees:
Ronny Theriot, Sheriff and
Warden Helen Wiltz

PICKETT, J.

The plaintiff, Mitch David Bourque, appeals a judgment of the trial court

sustaining exceptions of prescription filed by the defendants, Ronny Theriot, Sheriff

of St. Martin Parish and Helen Wilt, who was Warden of the St. Martin Parish

Correctional Center at the time at issue. We affirm the judgment of the trial court.

FACTS

The plaintiff, Mitch D. Bourque, was incarcerated in the St. Martin Parish

Correctional Center (hereinafter referred to as “the jail”) on or about November 15,

2004. Sometime thereafter, the plaintiff was placed in a two-man cell with the

defendant, Tomas Drake, an illegal alien who was being held for federal authorities.

Drake was much larger in size than Bourque who weighed approximately 118

pounds. On approximately ten occasions in January 2005, after lights out, Drake

raped Bourque and threatened him with death or severe physical harm if he informed

anyone of the attacks. Other inmates noticed a marked change in Bourque’s behavior

and notified the guards who moved Bourque to another cell on January 25, 2005.

Thereafter, Bourque was interviewed by Warden Wiltz, and, after being assured of

his future safety, Bourque finally reported on January 29, 2005, what had taken place.

The plaintiff filed the instant action on March 16, 2006, seeking damages for

injuries sustained as a result of the attacks. The defendants, Ronny Theriot, Sheriff

of St. Martin Parish, and Helen Wilt, the former Warden of the St. Martin Parish

Correctional Center, filed exceptions of prescription which were sustained by the trial

court. The plaintiff appeals.

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LAW AND ARGUMENT

In Petry v. Hebert, 06-1447, pp. 1-2 (La.App. 3 Cir. 5/2/07), 957 So.2d 286,

288, a panel of this court stated:

Ordinarily, when dealing with prescription, the burden of proof is on the
party pleading prescription; however, when the plaintiff’s petition has
clearly prescribed on its face, as it has here, the burden shifts to the
plaintiff to prove that prescription has been suspended or interrupted.
Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993). Delictual
actions are subject to a prescriptive period of one year commencing from
the date that the injury or damage is sustained. La.Civ.Code art. 3492.

In the case sub judice, the plaintiff’s petition sounds in tort. The petition was

not filed until more than one year after the date of the alleged incidents. Thus, the

petition is prescribed on its face, and the burden is on the plaintiff to prove an

interruption of the one year prescriptive period provided by La.Civ.Code art. 3492.

Between the time of the alleged attacks on the plaintiff and the filing of the

case herein, Hurricanes Katrina and Rita struck the state disrupting the everyday

course of life for a majority of people within the state. In response to the catastrophic

damage and the disruption resulting therefrom, then Governor Blanco issued a

number of Executive Orders (KBB 2005-32, 48 and 67) which suspended and/or

extended all prescriptive periods during the recovery period following the storms.

The plaintiff argues that, as a result of these executive orders, the prescriptive period

governing his claim was suspended or interrupted for a period of 89 days, or until

April 24, 2006. Further, the plaintiff argues that the trial court erred in finding

La.R.S. 9:5822 constitutional in that the statute divested him of substantive rights

previously vested. The trial court disagreed with the plaintiff’s argument and so do

we.

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In Unwired Telecom Corp. v. Parish of Calcasieu, 03-732, pp. 14-15 (La.

1/19/05), 903 So.2d 392, 403-04, the supreme court explained:

The state’s governmental powers are divided into three separate
branches: legislative, executive, and judicial. LA. CONST. ANN. art.
II, § 1. None of these branches, or anyone holding office in one of them,
shall exercise power belonging to either of the others. LA. CONST.
ANN. art. II,§ 2.

In Louisiana, legislation is the superior source of law which
custom cannot abrogate. LA. CIV.CODE ANN. art. 1, comments (a)
and (c). As authorized in LA. CONST. ANN. art. III, § 1, the legislative
power of the state is vested in the Legislature. In the exercise of
legislative power, the Legislature may enact any legislation that the state
constitution does not prohibit. Board of Com’rs of Orleans Levee Dist.
v. Dept. of Natural Resources, 496 So.2d 281, 286 (La.1986).
Therefore, the Legislature is free, within constitutional confines, to give
its enactments retroactive effect. St. Paul Fire & Marine Ins. Co. v.
Smith, 609 So.2d 809, 816 (La.1992).

LA. CIV.CODE ANN. art. 6 provides:

In the absence of contrary legislative expression,
substantive laws apply prospectively only. Procedural and
interpretative laws apply both prospectively and
retroactively, unless there is a legislative expression to the
contrary.

In a like manner, LA.REV.STAT. ANN. § 1:2 provides:

No section of the Revised Statutes is retroactive
unless it is expressly so stated.

Although LA.REV.STAT. ANN. § 1:2 does not distinguish
between substantive, procedural and interpretive laws, Louisiana
jurisprudence has consistently treated it and LA. CIV.CODE ANN. art.
6 as co-extensive. Bourgeois v. A.P. Green Indus., Inc., 00-1528
(La.4/3/01), 783 So.2d 1251, 1256, n6.

In Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), we
interpreted these two provisions as requiring a two-fold inquiry:

First, we must ascertain whether in the enactment the
legislature expressed its intent regarding retrospective or
prospective application. If the legislature did so, our
inquiry is at an end. If the legislature did not, we must

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classify the enactment as substantive, procedural or
interpretive.

Cole, 599 So.2d at 1063.

Notwithstanding, even when the Legislature has expressed its
intent to give a substantive law retroactive effect, the law many not be
applied retroactively if it would impair contractual obligations or disturb
vested rights. Smith v. Board of Trustees of Louisiana State Employees’
Retirement System, 02-2161 (La.6/27/03), 851 So.2d 1100. In a like
vein, interpretative legislation may also not be applied retroactively if
the legislative change violates the principles of separation of powers and
independence of the judiciary. See, infra.

Following Hurricanes Katrina and Rita, the First Extraordinary Session of the

legislature was convened on November 6, 2005. Acts 2005, 1st Ex.Sess., No. 6, § 1

enacted Chapter 1, “Of Obligations During Certain Emergencies and Disasters,” of

Code Title III of Code Book III of Title 9 of the Revised Statutes of 1950, comprised

of La.R.S. 9:2551 to 2565, effective November 23, 2005. Louisiana Revised Statutes

9:5821 states (emphasis ours):

A. The legislature finds that Hurricanes Katrina and Rita created
a statewide emergency disrupting and forcing the closure of certain
courts and public offices and further resulting in the displacement of
courts, offices, clients, and counsel. This Chapter is enacted for the
benefit and protection of the state as a whole and its citizens, and to
prevent injustice, inequity, and undue hardship to persons who were
prevented by these hurricanes from timely access to courts and offices
in the exercise of their legal rights, including the filing of documents
and pleadings as authorized or required by law. Therefore, this Chapter
shall be liberally construed to effect its purposes.

B. The action of the governor of this state in issuing Executive
Orders KBB 2005-32, 48, and 67 is hereby approved, ratified, and
confirmed subject to the provisions of R.S. 9:5822 through 5825.

Additionally, La. R.S. 9:5822(A) states the following (emphasis ours):

All prescriptions, including liberative, acquisitive, and the
prescription of nonuse, and all peremptive periods shall be subject to a
limited suspension and/or extension during the time period of August
26, 2005, through January 3, 2006; however, the suspension and/or
extension of these periods shall be limited and shall apply only if these

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periods would have otherwise lapsed during the time period of August
26, 2005, through January 3, 2006. This limited suspension and/or
extension shall terminate on January 3, 2006, and any right, claim, or
action which would have expired during the time period of August 26,
2005, through January 3, 2006, shall lapse on January 4, 2006.

In New Orleans Firefighters Ass’n. v. Civil Service Commission of the City of

New Orleans, 422 So.2d 402, 406 (La.1982), our supreme court reminded us of the

following:

The legislative power of the state is vested in the Legislature.
La.Const. 1974, Art. 3 § 1. Except as expressly provided by the
constitution, no other branch of government, nor any person holding
office in one of them, may exercise the legislative power. Id. Art. II §§
1 and 2. Furthermore, it is a general principle of judicial interpretation
of a state constitution that, unlike the federal constitution, a state
charter’s provisions are not grants of power but instead are limitations
on the otherwise plenary power of the people of a state exercised
through its legislature. In its exercise of the entire legislative power of
the state, the legislature may enact any legislation that the state
constitution does not prohibit. Thus, to hold legislation invalid under
the state constitution, it is necessary to rely upon some particular
constitutional provision that limits the power of the legislature to enact
the statute appealed. State ex rel Guste v. Legislative Budget
Committee, 347 So.2d 160 (La.1977); Hainkel v. Henry, 313 So.2d 577
(La.1975); In re Gulf Oxygen Welder’s Supply Profit Sharing Plan, 297
So.2d 663 (La.1974). See also, State v. Mallery, 364 So.2d 1283, 1284
(La.1978) (“Except as limited by the constitution its power is plenary”);
Swift v. State, 342 So.2d 191, 194 (La.1977) (“Unlike Congress, our
State Legislature has all powers of legislation not specifically denied it
by the Louisiana constitution”).

The ratification of the governor’s executive order by the legislature was not a

blanket ratification, but rather the suspension and/or extension of the prescriptive

and/or peremptive periods, and was limited by the legislature only to those periods

would have lapsed during the time period of August 26, 2005, through January 3,

2006. Furthermore, the legislature provided that the “ limited suspension and/or

extension shall terminate on January 3, 2006, and any right, claim, or action which

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would have expired during the time period of August 26, 2005, through January 3,

2006, shall lapse on January 4, 2006.” La.R.S. 9:5822.

Had there been no hurricanes, the plaintiff’s right to file his action would have

terminated on January 25, 2006. The actions of the legislature in no way affected the

plaintiff’s rights—prescription of his claim did not fall during the time period of

August 26, 2005, through January 3, 2006, and, in any event, the suspensions and/or

extensions provided by the statutes lapsed on January 4, 2006, three weeks before

prescription ran on the plaintiff’s claim.

The following is well settled:

[The court] is required to decide a constitutional issue only “if the
procedural posture of the case and the relief sought by the appellant
demand that [it] do so.” Ring v. State, DOTD, 2002-1367, pp. 6-7, 835
So.2d 423, 428. Further, a court should avoid constitutional questions
whenever the case can be disposed of on non-constitutional grounds.
Id. at 4, 835 So.2d at 427. One of the threshold non-constitutional
issues that must be decided by a court before it may consider a
constitutional challenge to a legal provision is whether the person
challenging the provision has standing. Id. at 9, 835 So.2d at 429. See
also Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d
697 (La.1993). In order to have standing to challenge the
constitutionality of a legal provision, the person bringing the challenge
must have rights in controversy. Id. at 7, 835 So.2d at 428. More
specifically, “[a] person can challenge the constitutionality of a statute
only if the statute seriously affects his or her rights.” Latour v. State,
2000-1176, p. 560 (La.App.1/29/01), 778 so.2d 557, 560, citing
Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission,
94-2015 (La.11/30/94), 646 So.2d 885.

State v. Mercadel, 03-3015, pp. 7-8 (La. 5/25/04), 874 So.2d 829, 834.

Accordingly, we find that (1) the legislature had the power to pass any law it

deemed fit,; (2) the statutes passed by the legislature in no way adversely affected the

rights of the plaintiff; and (3) since the plaintiff’s rights were not seriously affected,

the plaintiff is without standing to challenge the constitutionally of the statutes at

issue.

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In sum, the plaintiff failed to prove that prescription of his cause of action had

been suspended or interrupted, and he has no standing to challenge the

constitutionally of the statutes at issue.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

All costs of appeal are assessed against the plaintiff, Mitch D. Bourque.

AFFIRMED.

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