Crescent City Lodge 2, Fraternal Order of Police, Inc., Its President Walter Powers, Jr., on Behalf of Its Members, and Willie Jenkins, III and New Orleans Fire Fighters Association, Iaff Local 632, and Its Members v. New Orleans Civil Service Commission

• Court: Louisiana Court of Appeal
• Decided: February 17, 2021
• Docket: 2020-CA-0411
• Status: Published

Opinion

CRESCENT CITY LODGE #2, * NO. 2020-CA-0411 FRATERNAL ORDER OF POLICE, INC., ITS * COURT OF APPEAL PRESIDENT WALTER POWERS, JR., ON BEHALF OF * FOURTH CIRCUIT ITS MEMBERS, AND WILLIE JENKINS, III AND NEW * STATE OF LOUISIANA ORLEANS FIRE FIGHTERS ASSOCIATION, IAFF LOCAL * 632, AND ITS MEMBERS * VERSUS *******

NEW ORLEANS CIVIL SERVICE COMMISSION

SCJ

JENKINS, J., DISSENTS WITH REASONS

I respectfully dissent. I find that this Court has no jurisdiction to review the

May 26, 2020 minute entry decision by the Commission, and, accordingly, I would

dismiss the appeal.

Appellate courts have a duty to determine, sua sponte, whether the court has

proper subject matter jurisdiction to consider the merits of an appeal. Moon v. City

of New Orleans, 15-1092, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. “An

appeal can be dismissed … for lack of jurisdiction of the appellate court, or

because there is no right to appeal, …”. La. C.C.P. art. 2162.

The right to appeal a City Civil Service Commission decision directly to the

appellate court is found in La. Const. Art. X, §12(B), which provides as follows:

Each city commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review of any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.

1 Section 12(B) specifically provides for the Commission’s power and authority to

hear and decide all discipline and removal cases. However, Section 12(B) does not

confer a specific right to appeal non-disciplinary and removal decisions by the

Commission to the court of appeal. In Carbonnet v. Dept. of Civil Service, this

Court dismissed an appeal from an administrative decision of the Commission and

noted that La. Const. Art. X, §12(B) “applies only to ‘removal and disciplinary

cases.’” 97-1187, p. 3 (La. App. 4 Cir. 1/28/98), 706 So.2d 1063, 1064; see also,

Cotrell v. Div. of Housing and Neighborhood Development, 02-0816, p. 5 (La.

App. 4 Cir. 10/16/02), 830 So.2d 1083, 1086 (“the inclusion of such specific rights

to appeal to this Court in disciplinary and discrimination cases would imply that

such a direct right of appeal to this Court would not lie as to other matters.”).

Therefore, I find that the Louisiana Constitution and applicable jurisprudence do

not support our exercise of subject matter jurisdiction in this case.

In addition, I find nothing in the record before this Court upon which to

make any legal determination regarding the Commission’s decision. The

Commission considered the request of Appellants to be paid in accordance with

Civil Service Rule IV, §11.1, based solely on a review of the March 11, 2020

Mayoral Proclamation of a State of Emergency and the March 22, 2020 Chief

Administrative Office Memorandum. Other than the May 26, 2020 minute entry

decision rendered by the Commission, the record has no proceedings or process to

review. I find nothing for this Court to review on issues of fact or law.

For the foregoing reasons, I would dismiss the appeal.