State of Louisiana v. Maya Jones

• Court: Supreme Court of Louisiana
• Decided: May 1, 2026
• Docket: 2025-KA-00896
• Status: Published

Opinion

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #018

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 1st day of May, 2026 are as follows:

BY Hughes, J.:

2025-KA-00896 STATE OF LOUISIANA VS. MAYA JONES (Parish of Terrebonne)

AFFIRMED AND REMANDED. SEE OPINION.

Retired Judge Jeanette G. Garrett appointed Justice ad hoc, sitting for Weimer, C.J., recused.

Retired Judge Robert A. Chaisson appointed Justice ad hoc, sitting for Justice pro tempore Penzato, recused.

McCallum, J., dissents and assigns reasons.

Griffin, J., additionally concurs and assigns reasons.

Cole, J., dissents for the reasons assigned by Justice McCallum. SUPREME COURT OF LOUISIANA

No. 2025-KA-00896

STATE OF LOUISIANA

VS.

MAYA JONES

On Appeal from the 32nd Judicial District Court, Parish of Terrebonne

HUGHES, J.1

This matter is before us on a challenge to the constitutionality of La. R.S.

15:168(E)(3), which prohibits courts from ordering the payment of funds

administered by the Office of the State Public Defender or district public defender.

The district court held that the statute was unconstitutional in violation of Louisiana

Constitution Article 5, § 16(A), which gives exclusive original jurisdiction of felony

cases to district courts. We affirm the district court’s judgment and remand for

further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On August 1, 2022 a grand jury indicted the defendant Maya Jones, along

with co-defendant Jermaine Michael Robinson, for first degree murder in violation

of La. R.S. 14:30 and obstruction of justice by tampering with evidence, a violation

of La. R.S. 14:130.1(A)(1). 2 The charges stem from the death of Ms. Jones’s two-

1 Retired Judge Jeanette G. Garrett, appointed Justice Ad Hoc, sitting for Chief Justice Weimer, recused. Retired Judge Robert A. Chaisson, appointed Justice Ad Hoc, sitting for Justice Allison H. Penzato, Pro Tempore, recused. 2 Ms. Jones filed a Motion for Severance, and in September 2023, the charges against Ms. Jones were severed from those against Mr. Robinson. year-old son. Ms. Jones entered a plea of not guilty to both counts. The State filed a

Notice of Intent to Seek the Death Penalty, however the State has indicated in its

September 2025 brief to this court that the death penalty was “recently withdrawn.”

Numerous pre-trial motions were filed, including Ms. Jones’s November 2024

Motion for Expert Funding in Relation to Change of Venue. In her motion, Ms. Jones

asserted that she requires an expert to conduct community polling and analyze

community attitudes to show her need for a change of venue, and without an expert

she would have a claim for ineffective assistance of counsel.3 Ms. Jones sought

funding for an expert under the Louisiana Capital Defense Guidelines, LAC 22:XV,

Chapter 9, § 913(B) 4 from the Office of the State Public Defender (OSPD), but her

request was denied. Her request for reconsideration was also denied.

The district court conducted several hearings on Ms. Jones’s request for expert

funding, including one in January 2025 at which Remy Starns, the state public

defender, testified. According to Mr. Starns, he is tasked with the responsibility “to

administer the system in an efficient and fiscally responsible manner, while

respecting the Strickland v. Washington[5] standard . . . to provide effective

3 Shortly after filing the motion, Ms. Jones filed a Motion for Change in Venue. Her motion was based on pretrial publicity, including an Amber alert that was issued when Ms. Jones reported her child missing, and subsequent media attention to the case after the child’s body was discovered in a garbage can and surveillance video was released allegedly showing Ms. Jones and Mr. Robinson carrying the child’s body in a duffel bag before they disposed of it. 4 Louisiana Capital Defense Guidelines, LAC 22:XV, Chapter 9, § 913(B) provides:

B. Expert, Investigative and Other Ancillary Professional Services 1. Counsel shall have access to the assistance of all expert, investigative, and other ancillary professional services reasonably necessary or appropriate to provide high quality legal representation at every stage of the proceedings. 2. The state public defender shall provide funds for the assistance of experts, including mitigation specialists, and extraordinary investigative services. . . Funds for ordinary investigative services will be provided by the district public defender unless responsibility for the case under § 905 is vested in the state public defender. 5 Strickland v. Washington, 466 U.S. 668 (1984). 2 assistance of counsel to all the persons [the office] represents.” 6 He testified that

under the Louisiana Public Defender Act, La. R.S. 15:141, et seq., his office is given

“plenary authority over all aspects of the public defender system.” When a request

for funding for an expert witness is received, his office evaluates it on a case-by-

case basis, taking “into account all of the factors that each request asks us to do.”

After this “deliberative process,” his office determines whether to approve the

request.

At the conclusion of the hearing, the district court determined that the

assistance of the requested expert was “necessary and . . . likely in order for the

defendant to be able to present its motion. . . . The Defense has shown to the Court

that it meets the Touchet[7] standard.” The district court deferred ordering the

payment of expert fees, finding that it was barred from doing so by La. R.S.

15:168(E)(3). Subsection (E) states:

E. (1) Notwithstanding any provision of law to the contrary, each judicial district is allowed to accumulate funds for the purposes of retaining expert witnesses. The district public defender, in his discretion, shall determine how payments shall be administered and which experts shall be paid. (2) Any person who has retained private counsel but is found to be indigent may apply for funds for expert witnesses in the same manner as public defender clients. Each person shall apply for the funds by making application to the district defender of the district having jurisdiction and shall be subject to the same requirements as indigent clients. (3) No court shall have jurisdiction to order the payment of any funds administered by the office or district public defender for expert witnesses, or for any other reason.

In February 2025, Ms. Jones filed a Motion to Declare La. R.S. 15:168(E)(3)

unconstitutional. Finding that under the statute Ms. Jones “is left without a remedy

for judicial review,” the district court determined that La. R.S. 15:168(E)(3) violates

6 As Mr. Starns indicated, his office is responsible for the defense of approximately 146,000 people annually in all sixty-four parishes and forty-two judicial districts, accounting for about 88% of all persons accused of crimes in Louisiana. 7 State v. Touchet, 93-2839 (La. 9/6/94), 642 So.2d 1213. 3 “not only Article 5 of the Constitution but it also strips the defendant of her due

process rights.” The court stated:

In regards to the funding of the indigent defendants and their effective defense, the constitution has not vested jurisdiction to another tribunal. And this law now specifically impedes the Court’s exclusive jurisdiction over this felony case. State versus Maya Jones certainly is a criminal felony case. The Court has exclusive jurisdiction over the management of the case. And a law prohibiting the Court’s ability to order payment upon proper and just cause being found by this Court directly impedes on this Court’s ability to insure that justice is obtained.

The district court looked to this court’s decision in State v. Craig, which

indicated that “‘even in the absence of legislative or executive authorization, a court

may, when reasonably necessary, appoint counsel for an indigent and award the

attorney a reasonable fee to be paid from a source which the court deems

appropriate.’” State v. Craig, 93-2515, p. 10 (5/23/94), 637 So.2d 437, 445 (quoting

State In the Interest of Johnson, 475 So.2d 340, 342 (La. 1985)). In Craig, this court

found “no reason to differentiate the need for payment to an indigent’s attorney from

the need for payment of investigators and experts who assist that attorney, since . . .

these persons assist the attorney in the preparation of an effective defense and help

to make the attorney ‘reasonably effective.’” Id. (quoting State v. Peart, 621 So.2d

780, 783 (La. 1993)). Finding “the same to be true for the funding to provide an

adequate defense of an indigent defend[ant],” the district court concluded that La.

R.S. 15:168(E)(3) “strips the litigants of [the] right to seek review [of the denial of

funding] and it states that no court shall have jurisdiction” as it “prohibits any court

from hearing facts, weighing credibility, and rendering a judgment over the proper

payment of such funds . . . . The Court’s jurisdiction over the felony case that it’s

tasked with presiding over has been eroded away by this law.”

The district court further found that the remedy provided in State v. Citizen

(halting prosecution until adequate funding is found) is not adequate, particularly 4 where, as here, there are sufficient funds to pay for the requested expert. 8 State v.

Citizen, 04-1841 (La. 4/1/05), 898 So.2d 325. To find otherwise would allow cases

to be halted “without the courts even having any recourse,” which would lead to “an

absurd result.” The district court thus found La. R.S. 15:168(E)(3) to be “clearly

unconstitutional as it is in direct violation” of Louisiana Constitution, Article 5,

including § 16(A).”9

A direct appeal was taken to this court by the State of Louisiana, and the

Attorney General for the State of Louisiana intervened. See La. Const. art. 5, § 5(D)

(“a case shall be appealable to the supreme court if (1) a law or ordinance has been

declared unconstitutional”).

LAW AND DISCUSSION

The sole issue presented by this case is whether La. R.S. 15:168(E)(3) is

unconstitutional.

Standard of review

A district court’s judgment declaring a statute unconstitutional is reviewed

by this court de novo. See S. Silica of Louisiana, Inc. v. Louisiana Ins. Guar. Ass’n,

07-1680, p. 8 (La. 4/8/08), 979 So.2d 460, 466. Under this de novo standard, “the

court will decide the matter after considering the statute at issue, the relevant law,

8 Mr. Starns testified that there is approximately $10 million in the Louisiana Public Defender Fund. 9 Louisiana Constitution Article 5, § 16(A) provides:

Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage. 5 and the record without deference to the legal conclusions of the courts below.” State

v. Lee, 22-1827, p. 4 (La. 9/1/23), 370 So.3d 408, 412.

Constitutionality

This court recently reiterated the well-settled principles to be considered in

reviewing the constitutionality of a statute:

“All statutory enactments are presumed constitutional.” Carver v. Louisiana Dep’t of Pub. Safety, 2017-1340, p. 5 (La. 1/30/18), 239 So. 3d 226, 230); see also, Calcasieu Par. Sch. Bd. Sales & Use Dep’t v. Nelson Indus. Steam Co., 2021-00552 (La. 10/10/21), 332 So.3d 606, 613-14; State v. Hatton, 2007-2377, p. 13 (La. 7/1/08), 985 So. 2d 709, 719. This presumption is based on the premise that “legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation.” Carver, 2017-1340, p. 5, 239 So. 3d at 230; Greater New Orleans Expressway Comm’n v. Olivier, 2004-2147, p. 4 (La. 1/19/05), 892 So. 2d 570, 573 (“Because legislators owe the same duty to obey and uphold the constitution as do judges, legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation.”). **** The presumption of constitutionality is significant; “[b]ecause of the presumption ..., in determining the validity of a constitutional challenge, a Court ‘must construe a statute so as to preserve its constitutionality when it is reasonable to do so.’ ” Carver, 2017-1340, 239 So. 3d at 230; M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 22, 998 So. 2d 16, 31. Additionally, “[b]ecause statutes are presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality.” Fransen, 2008-0076, p. 11, 988 So. 2d at 234; see also, State in Int. of D.T., 2019-01445 (La. 4/3/20), 340 So. 3d 745, 748 (internal citations omitted)(“‘Statutes are presumed to be valid, and the constitutionality of a statute should be upheld wherever possible....’ When a statute is challenged as being unconstitutional on its face, ... the moving party bears an especially heavy burden to establish that there is no other interpretation or circumstance under which the law would be constitutional.”)

Westlawn Cemeteries, L.L.C. v. Louisiana Cemetery Bd., 21-1414, p. 12-13 (La.

3/25/22), 339 So.3d 548, 559-60.

6 Any doubt as to whether a statute is constitutional is to be resolved in favor

of constitutionality. Polk v. Edwards, 626 So.2d 1128, 1132 (La. 1993). The party

challenging the constitutionality of a statute “must establish more than that the

constitutionality of the legislation is fairly debatable. The opponent must establish

clearly and convincingly that the constitutional aim was to deny to the legislature

the power to enact the legislation.” Id.

Governmental powers; Separation of powers; and inherent powers of the branches of government

The Louisiana Constitution of 1974 divides governmental power into three

separate branches: legislative, executive, and judicial. La. Const. art. 2, § 1. The

Louisiana Constitution explicitly incorporates the doctrine of separation of powers

in Article 2, § 2, which states:

Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.

As this court recognized in State v. Lanclos, Article 2 establishes “the basis

for the recognition of inherent powers in the judicial branch which the legislative

and the executive branches cannot abridge.” State v. Lanclos, 07-82, p. 11 (La.

4/8/08), 980 So.2d 643, 651. Nor may the judicial branch abridge the inherent

powers of the legislative and executive branches. Hoag v. State, 04-857, p. 4 (La.

12/1/04), 889 So.2d 1019, 1022. In addition, the constitution is violated “only if one

branch of government or its members exercises power belonging to either of the

others.” DeJean v. Purpera, 15-1214, p. 7 (La. App. 1 Cir. 4/15/16), 199 So.3d 11,

16, writ denied, 16-1682 (La. 9/13/16), 206 So.3d 199 (quoting State in Interest of

A.C., 93-1125, p. 18 (La. 1/27/94), 643 So.2d 719, 731).

The origin of these principles is a “desire for each branch to act as a ‘check’

upon the other and . . . ensure a ‘balanced’ government.” State in Interest of A.C.,

643 So.2d at 731-32 (quoting Humphrey’s Executor v. United States, 295 U.S. 602

7 (1935)). While the separation of powers doctrine is “clearly and emphatically

expressed in the Louisiana Constitution and must be maintained to its full extent,”

we have observed that “the exact line between judicial and legislative powers has

never been delineated with absolute precision.” State v. Umezulike, 03-1404, p. 4

(La. 2/25/04), 866 So.2d 794, 797.

Unlike the United States Constitution, which grants specific, enumerated

powers to each branch of the federal government, the Louisiana Constitution does

not grant powers. Instead, its provisions are limitations on the otherwise plenary

power of the people, which is exercised through the legislature. See Louisiana Fed’n

of Teachers v. State, 13-120, p. 21 (La. 5/7/13), 118 So.3d 1033, 1048. “Legislative

power . . . is the authority to make laws, but not to enforce them,” as that is an

executive function. State ex rel. Guste v. Legislative Budget Comm., 347 So.2d 160,

165 (La. 1977) (quoting Springer v. Government of Philippine Islands, 277 U.S. 189,

202 (1928)). Unless the Louisiana Constitution specifically limits or forbids an

action, the legislature generally has the authority to act. Id. at 164. (“the legislature

may enact any legislation that the constitution does not prohibit.”). Indeed, the

plenary power of the legislature is “the rule” and a limitation on the legislature’s

exercise of this power is the exception. Williams v. Mumphrey, 95-643, p. 6 (La.

App. 5 Cir. 1/30/96), 668 So.2d 1274, 1277, writ not considered, 96-569 (La.

3/29/96), 670 So.2d 1240.

The Louisiana Constitution vests judicial power in the supreme court, the

courts of appeal, and the district courts. La. Const. art. 5, § 1. Judges at each level of

this hierarchy have the constitutional authority to issue all needful writs, orders, and

process in aid of the jurisdiction of their courts. La. Const. art. 5, § 2. District courts

have original jurisdiction of all criminal matters and exclusive original jurisdiction

of felony cases, except as otherwise authorized by the Louisiana Constitution. La.

Const. art. 5, § 16(A). Original jurisdiction is jurisdiction of the first instance. Moore

8 v. Roemer, 567 So.2d 75, 79 (La. 1990). The term designates the adjudicative

tribunal in which the initial adjudication is made. Id. In addition, the Louisiana courts

of appeal have appellate jurisdiction in all non-death penalty criminal cases arising

in the district courts and have supervisory jurisdiction over cases that arise in the

circuit. La. Const. art. 5, § 10. The Louisiana Supreme Court has general supervisory

jurisdiction over all courts and exclusive authority to regulate the practice of law in

this state. La. Const. art. 5, § 5.

In Pope v. State, this court opined that Article 5, § 16(A), “effectively limits

the powers of the Legislature and precludes the Legislature from changing the

original jurisdiction of district courts fixed by the Constitution.” Pope v. State, 99-

2559, p. 12 (La. 6/29/01), 792 So.2d 713, 720. In Pope, this court held

unconstitutional a statute that required the Department of Corrections to take

cognizance of a tort claim brought by prisoners at the inception of the action, try the

claim, and pass judgment on the law and facts of the action, allowing for judicial

review by a district court only on the record made before DOC officials. Id. at 716.

In Meyer v. Board of Trustees of Firemen’s Pension & Relief Fund for City of

New Orleans, this court wrote that if a statute is construed to deprive a party of a

cause of action in a district court, the statute “would undoubtably make that part of

the law unconstitutional.” Meyer v. Board of Trustees of Firemen’s Pension & Relief

Fund for City of New Orleans, 6 So.2d 713, 715 (La. 1942). In Meyer, this court

examined a statute giving a board the power to hear and decide all applications for

relief, pensions, and death benefits, and making such decisions by the board final

and not reviewable, except by the board itself. Id. While the statute was interpreted

by the court to maintain its constitutionality, it relied on the state constitutional

guarantee that every person shall have an adequate remedy by due process of law

and justice administered “without denial” (now found in Article 1, § 2 and § 22) and

9 the constitutional provisions vesting the courts with jurisdiction. Id. at 716. The court

reasoned:

It would be most unusual, if not extraordinary, to hold that the Legislature intended that the Board, which is given the full power and authority to administer the pension fund, is the sole and only judge of the legal rights of the widow under the provisions of the statute and that its decisions would not be subject to review by the courts.

Id.

The judicial power of our courts is derived “from [either] an express

constitutional grant or from inherent judicial power reasonably necessary for the

exercise of their function as courts.” Umezulike, 866 So.2d at 798. In Konrad v.

Jefferson Parish Council, we explained the inherent powers of the judiciary:

Under the doctrine of inherent powers, courts have the power (other than those powers expressly enumerated in the constitution and the statutes) to do all things reasonably necessary for the exercise of their functions as courts. The doctrine is a corollary of the concepts of separation of powers and of judicial independence, in that other branches of government cannot, by denying resources or authority to the court, prevent the courts from carrying out their constitutional responsibilities as an independent branch of government. The inherent power of the judiciary is a necessary concomitant to the judicial power, but pertains to the administration of the business of the court.

The doctrine of inherent powers has been utilized to provide the power to punish for contempt, to adopt rules of practice, to regulate lawyer admission to practice and lawyer discipline, and to require the appropriation or expenditure of funds reasonably necessary for the court’s functioning as a court.

Konrad v. Jefferson Parish Council, 520 So.2d 393, 397 (La. 1988); see also

Lanclos, 980 So.2d at 651.

The Legislature codified the courts’ inherent power in Louisiana Code of Civil

Procedure Article 191, which provides that a court “possesses inherently all of the

power necessary for the exercise of its jurisdiction even though not granted expressly

by law.” We observed in Hoag, however, “some inevitable overlap of the functions”

10 of the various branches of the government, and we cautioned that “each branch of

government must strive to maintain the separation of powers by not encroaching

upon the power of the others.” Hoag, 889 So.2d at 1024. To that end, we emphasized

that “the inherent powers of the judiciary should be used sparingly and only to the

extent necessary to insure judicial independence and integrity.” Id.

That is not to say that there are not times when the judiciary can invoke its

inherent powers vis-à-vis legislation. In Fisher v. Harter, this court wrote:

It must be recognized that, due to the fact that courts are not empowered to enact laws, legislation passed in aid of the courts’ inherent power is generally approved, but the courts will not sanction any legislation challenged on the basis that it has the effect of divesting or stripping the courts of their inherent power. Thus, the Legislature may enact statutes in aid of the courts’ powers, subject to the courts’ approval, but legislation subverting the courts’ constitutional power violates the separation of powers doctrine set forth in La. Const. Art. 2, § 2.

Fisher v. Harter, 24-359, p. 12 (La. 10/25/24), 395 So.3d 806, 816 (internal citations

removed); see also Singer Hutner Levine Seeman & Stuart, 378 So.2d 423, 426 (La.

1979) (“This court will uphold legislative acts passed in aid of its inherent power,

but will strike down statutes which tend to impede or frustrate its authority.”)

Rights of the Accused to a Defense

The Sixth Amendment to the United States Constitution provides, “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defence.” As recognized in Gideon v. Wainwright, the Sixth

Amendment to the federal Constitution provides that in all criminal prosecutions the

accused has a right to assistance of counsel for his defense, and the Fourteenth

Amendment makes this right obligatory on the states. Gideon v. Wainwright, 372

U.S. 335, 342-43 (1963); see also La. Const. art. 1, § 13 (“At each stage of the

proceedings, every person is entitled to assistance of counsel of his choice, or

appointed by the court if he is indigent and charged with an offense punishable by

imprisonment.”). As the U.S. Supreme Court stated in Ake v. Oklahoma, “[J]ustice

11 cannot be equal where, simply as a result of his poverty, a defendant is denied the

opportunity to participate meaningfully in a judicial proceeding in which his liberty

is at stake.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985).

As part of the state’s obligation in providing effective assistance of counsel to

an indigent defendant, it must furnish the indigent’s defense counsel with all of the

“basic tools of an adequate defense,” at no cost to the indigent defendant. Britt v.

North Carolina, 404 U.S. 226, 227 (1971). This court has long upheld trial court

orders for payment of the services of investigators and expert witnesses, such as

psychologists and mitigation experts, by the government. See, e.g., Craig, 637 So.2d

at 448.

In order to receive funding for expert witnesses, an indigent defendant must

establish that the expert assistance will be “necessary to the construction of an

effective defense.” State v. Touchet, 93-2839, p. 4 (La. 9/6/94), 642 So.2d 1213,

1215.

History of Louisiana’s Indigent Defense Counsel and Related Jurisprudence

The way the state has structured and funded indigent defense counsel has

taken many forms over many decades. Act 366 of 1966, which became La. R.S.

15:141, established indigent defender boards under the supervision of each judicial

district, which oversaw matters like selection of counsel and rates of compensation,

and established funding through costs taxed on those convicted. Enacted with the

Louisiana Constitution of 1974 was Article 1, § 13, which states in part that the

Legislature “shall provide for a uniform system for securing and compensating

qualified counsel for indigents.”

In 1985, this court was presented with the question of who, in the absence of

a statute authorizing payment, should be required to compensate an attorney who

was appointed to represent an indigent parent in a child abandonment proceeding.

12 Johnson, 475 So.2d at 341. In determining that the Department of Health and Human

Resources (DHHR) was the appropriate body to pay, this court wrote:

The separation of powers by our state constitution establishes an inherent judicial power which the legislative and executive branches cannot abridge. La. Const. Art. II. Among the purposes for which inherent judicial power may be exerted are the issuance of needful orders in aid of a court’s jurisdiction and the regulation of the practice of law. La. Const. Art. V § 2, 5(B). In aid of these purposes, a court has the inherent power to require an attorney to represent an indigent, with or without compensation, as an obligation burdening his privileges to practice and to serve as an officer of court. The court’s power to furnish counsel for indigents necessarily includes the power, when reasonably necessary for effective representation, to issue an order requiring the state, its appropriate subdivision, department, or agency, to provide for the payment of counsel fees and necessary expenses. The inherent judicial power may be aided by the legislative and executive branches, but their acts or failure to act cannot destroy, frustrate, or impede the court's inherent constitutional authority. Consequently, even in the absence of legislative or executive authorization, a court may, when reasonably necessary, appoint counsel for an indigent and award the attorney a reasonable fee to be paid from a source which the court deems appropriate.

Johnson, 475 So.2d at 341-42 (some citations omitted).

The Johnson opinion noted that a court must “act with comity toward the other

branches of government and with sensitive regard for the concepts of functional

differentiation and the checks and balances implied by the separation of powers

doctrine” in determining what governmental body should pay the fees. Id. at 342.

Important considerations for a court making this decision include: the structure and

scheme of existing legislation which may be applied by analogy, the ability of an

entity to budget and finance such expenditures, the entity’s responsibility for

incurring the need for legal services or for administering the program out of which

the need arises, and the existence of any custom or informal practice regarding the

payment of such fees. Id.

Following Johnson, the Legislature amended the statute to state that DHHR

was not responsible for the costs of representation of indigent parents. In subsequent

cases, Louisiana courts identified the indigent defender boards as the appropriate

13 source of funds. See State in the Interest of S.C. v. D.N.C., 26,104 (La. App. 2 Cir.

6/22/94), 639 So.2d 426, 431, writ denied, 94-1977 (La. 11/4/94), 644 So.2d 1061.

The indigent defender system established in 1966 was kept in place for years,

but by 1990 the Louisiana Supreme Court appointed a statewide Indigent Defender

Board Committee of the state’s Judicial Council to study its inadequacies. In 1993,

this court wrote in State v. Peart:

If legislative action is not forthcoming and indigent defense reform does not take place, this Court, in the exercise of its constitutional and inherent power and supervisory jurisdiction, may find it necessary to employ the more intrusive and specific measures it has thus far avoided to ensure that indigent defendants receive reasonably effective assistance of counsel.

Peart, 621 So.2d at 791; see also State v. Wigley, 624 So.2d 425, 430 n.5 (La. 1993)

(“[C]ourts, in the exercise of their supervisory and inherent power, could authorize

and require a higher payment” to an attorney assigned to represent an indigent

defendant.).

In 1994, the Louisiana Supreme Court created the Louisiana Indigent

Defender Board (LIDB) and passed Rule XXXI, which created a program for death

penalty cases and an expert witness/testing fund, among others.

Also in 1994, this court handed down the opinion in State v. Craig, which

affirmed the inherent constitutional authority of the court to order the state to pay

for counsel representing indigent defendants as well as investigators and experts

assisting the defense. Craig, 637 So.2d at 440. The court reasoned:

In State In the Interest of Johnson, 475 So2d 340, 342 (La.1985), we stated that the failure of a co-equal branch to properly designate and appropriate a fee for indigent defense counsel did not prevent same from being obtained by court order:

even in the absence of legislative or executive authorization, a court may, when reasonably necessary, appoint counsel for an indigent and award the attorney a reasonable fee to be paid from a source which the court deems appropriate,

noting that this was a proper exercise of the court’s inherent powers

14 under the state constitution. In the instant case, we can see no reason to differentiate the need for payment to an indigent's attorney from the need for payment of investigators and experts who assist that attorney, since, as discussed earlier, these persons assist the attorney in the preparation of an effective defense and help to make the attorney “reasonably effective.” State v. Peart, 621 So2d 780, 783 (La.1993).

Id. at 445. Upon reviewing La. R.S. 15:304 and La. R.S. 15:571.11, the Craig court

determined that local city-parish funds were responsible for payment of indigent

defense fees. Id. at 448. Following Craig, the Legislature amended those statutes to

provide that city-parishes were not responsible for funding indigent defense.

This court then announced a procedure for ex parte hearings on indigent

defense funding and held that if a defendant establishes that expert assistance will

be necessary to the construction of an effective defense, a district court is to

“authorize the hiring of an expert at the expense of the state.” Touchet, 642 So.2d at

1216; see also State v. Frank, 99-553, p. 10 (La. 1/17/01), 803 So.2d 1, 11 (holding

that if the defendant satisfied the Touchet standard, the district court was to “order

that state funds be procured so that the defendant may hire the requested experts to

assist her defense at the sentencing hearing.”). The Touchet opinion noted that, due

to the new funding for the LIDB and the expert witness fund, the opinion would not

address the precise source of funding. Touchet, 642 So.2d at n.4.

In 1998, the LIDB was reconstituted by the Legislature as the Louisiana

Indigent Defense Assistance Board (LIDAB), however, the principal responsibility

for providing for indigent defense remained by statute at the local level and the

budget of LIDAB was limited. The expert witness fund was discontinued due to a

lack of funding.

In 2005, this court reviewed a lower court’s determination that the post-Craig

amendments were unconstitutional as they barred the court from ordering the use of

surplus funds to defray the costs of representation of an indigent defendant. Citizen,

898 So.2d at 329. In holding the statutes to be constitutional because they

15 specifically provide the medium in which to seek funding for an indigent defense,

the court in State v. Citizen reasoned:

The statutes do not declare that indigent defense costs will not be paid, they simply place this burden on the state. The fact that the legislature has not adequately funded the programs it has created to meet its constitutional mandate does not make the statutes themselves unconstitutional. . . . As stated in Craig, the legislature has the constitutional right and authority to declare responsibility for the payment of these costs and it has done so. The mere fact that it has exempted these expenses from the individual parishes does not diminish any of the constitutionally guaranteed rights and freedoms of these defendants or of their attorneys.

Id. at 335. The Citizen court also provided that if funds could not be identified, a

district court could appoint counsel before determining a source of funds and counsel

could request that the proceedings be halted. Id. at 338-39.

In 2007, the Legislature passed the Louisiana Public Defender Act, creating

the Louisiana Public Defender Board with an increased budget and expansive

powers to manage indigent defense while maintaining principal responsibility for

costs at the local level. La. R.S. 15:141, et. seq. The Louisiana Public Defender

Board then reconstituted the capital expert witness fund. As part of the Louisiana

Public Defender Act, La. R.S. 15:149 was added. It provides: “Nothing in the

provisions of this Part shall be construed to limit or supersede the inherent regulatory

authority of the Louisiana Supreme Court provided for in Article V, Section 5 of the

Constitution of Louisiana regarding the regulation of the practice of law in the state

of Louisiana.”

In 2011, in the case of State v. Carley, the Louisiana Supreme Court

reaffirmed that where a defendant meets the Touchet showing of need for a particular

expert, “then the court is to order that the funds be provided by the state.” State v.

Carley, 10-2768 (La. 1/7/11), 52 So.3d 81 (per curiam).

In 2022, the Legislature passed La. R.S. 15:168(E)(3), which stated for the

first time that: “No court shall have jurisdiction to order the payment of any funds

16 administered by the office or district public defender for expert witnesses.” In 2024,

the Legislature scrapped the Public Defender Board and replaced it with a single

executive branch officer, the state public defender, appointed by the governor and

subject to limited supervision by an oversight board. At this time, the Legislature

also added “or for any other reason,” to the end of La. R.S. 15:168(E)(3).

Analysis

Given the jurisprudence and chronology above, this court agrees with the

district court that La. R.S. 15:168(E)(3) is unconstitutional as it infringes upon the

courts’s constitutionally granted jurisdiction and inherent authority. See Citizen, 898

So.2d 336. The Legislature does not have the power to change the original

jurisdiction of district courts as fixed by the constitution. Pope, 792 So.2d at 720.

The constitutional grant of judicial power and original jurisdiction in felony

matters to district courts in Louisiana Constitution Article 5, § 16(A) includes the

authority to order the payment of appropriate expert costs for indigent defendants.

Louisiana courts have a duty to “ensure that the criminal justice system is

functioning in a constitutional manner,” including cases involving indigent

defendants in our state courts. Citizen, 898 So.2d at 338. In exercising its

constitutional and inherent authorities, and in the case of reviewing courts its

supervisory jurisdiction, the courts have the power to take corrective measures to

ensure that indigent defendants are provided with their constitutional and statutory

rights. Id. at 336. We agree with the district court judge in the instant case who

opined that the Legislature “cannot write out the jurisdiction of the Court to review

matters directly affecting the rights of a criminal defendant.”

As we stated in Fisher: “Denying a court the power to decide matters

historically considered as falling exclusively within the bailiwick of the judicial

branch subverts the power of the judiciary in violation of the separation of powers

doctrine.” Fisher, 395 So.3d at 817. The courts have consistently maintained that the

17 Legislature is to define where indigent defense funding comes from and that the

courts have the authority to order that certain resources are necessary for a defendant

to receive a constitutionally adequate defense.

Moreover, the statute at issue here violates the defendant’s right to access the

courts as she is not afforded the opportunity to seek review of the decision by OSPD.

La. Const. art. 1, § 22. As noted by the trial court, the method to challenge whether

an expert witness is constitutionally necessary is to seek review of the trial court’s

ruling from the Touchet hearing. While the State argues that a court has the power

to halt prosecution if it believes a defendant is receiving a constitutionally infirm

defense, such a result is extreme and disruptive to the efficient administration of

justice. As noted by the trial court, if a criminal prosecution was halted, the

progression of the case would then be controlled not by a judge or court but by the

state public defender, without recourse. See Meyer, 6 So.2d at 716. If this occurs, the

statute would abridge the judiciary’s “inherent authority,” which is authority

“reasonably necessary for the exercise of their function as courts.” Fisher, 395 So.3d

at 811.

The State also argues that Louisiana Constitution Article 1, § 13 gives the

Legislature the power to make expert witness fee determinations that are not subject

to judicial review as it states: “The legislature shall provide for a uniform system

securing and compensating qualified counsel for indigents.” This single sentence

does not indicate that the people of Louisiana sought to curtail the jurisdiction of the

courts. In addition, there have been decades of judicial opinions and responsive

legislation written in this area of law, inconsistent with this theory. In Peart, this

court opined that this sentence of Article 1, § 13 simply mandates that the Legislature

“do something” to protect the enumerated rights of defendants. 621 So.2d at 786.

The court opined:

18 the provision of a ‘uniform system for securing and compensating qualified counsel’ is not a right which the individual defendant is entitled to enforce, although the existence of this provision in the constitution may well bolster this Court’s existing constitutional, supervisory and inherent authority to ensure that indigent defendants receive the effective assistance of counsel the constitution guarantees them.

CONCLUSION

The statute enacted by the Legislature in La. R.S. 15:168(E)(3) is inconsistent

with the historical analysis and implementation of payment of the expense for

indigent counsel. It is contrary to the jurisprudence which holds that the state bears

responsibility for the funds required while the courts have the duty to determine what

payments are necessary. The statute ultimately infringes on the courts’ constitutional

authority and inherent power to oversee and manage criminal prosecutions.

DECREE

Accordingly and for the reasons set forth herein, we find that the Legislature,

in enacting La. R.S. 15:168(E)(3), acted outside its authority and contrary to the

courts’ constitutionally granted jurisdiction to order that indigent defense expenses

be paid. The judgment of the trial court declaring the statute to be unconstitutional

is affirmed. We remand this matter for further proceedings.

AFFIRMED AND REMANDED.

19 SUPREME COURT OF LOUISIANA

On Appeal from the 32nd Judicial District Court, Parish of Terrebonne

McCALLUM, J., dissents with reasons.

I respectfully dissent from the majority’s finding that La. R.S. 15:168 E(3) is

unconstitutional. In my view, the statute comports with separation of powers

principles and recognizes the autonomy vested by the Legislature in the Office of

the State Public Defender (“OSPD”) to manage its operations. On this basis, I find

the statute is constitutional.

The doctrine of separation of powers is not just a philosophical nicety. It has

significant practical consequences. The majority, with ostensibly well-meaning

motives, has now sanctioned the encroachment by one branch of government upon

the authority vested in each of the other two branches. In doing so, the majority’s

opinion eviscerates the ability of our state to meaningfully prosecute defendants

facing capital charges. Perhaps that is the ultimate purpose. Today’s opinion gives

trial judges carte blanch to order executive branch expenditures of taxpayer dollars

for non-capital cases, even where a defendant is represented by private counsel.

The United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335

(1963), held that the right to counsel is a fundamental right essential to a fair trial,

and that the Sixth Amendment’s guarantee of counsel is made obligatory on the

states through the Fourteenth Amendment. “Louisiana responded [to Gideon]. . . by

creating a state indigent defender board (formerly, La. R.S. 15:141 et seq.) in 1966

and, within a decade, by enacting La. Const. Art. I § 13.” State v. Citizen, 04-1841, p. 5 (La. 4/1/05), 898 So. 2d 325, 330. Our Constitution’s Declaration of Rights, set

forth in Article I, contains the “Rights of the Accused” in Section 13. Among those

rights is the “right to the assistance of counsel and, if indigent, [the] right to court

appointed counsel.”

The State’s obligation to provide counsel also requires that an indigent

defendant’s attorney be supplied, at no expense to the defendant, with the “basic

tools of an adequate defense.” State v. Touchet, 93-2839, p. 3 (La. 9/6/94), 642 So.

2d 1213, 1215 (quoting Britt v. North Carolina, 404 U.S. 226 (1971)). While the

Touchet Court acknowledged that indigent defendants have a right to receive funds

for expert testimony, it specifically declined to make any findings as to where those

funds are derived. Instead, the Court stated:

It is the state’s obligation to furnish the necessary funds to pay the cost of experts needed to assist counsel for indigent defendants. This opinion does not purport to deal with the precise source of funds or governmental entities responsible therefor. . . .

Id., 93-2839, p. 15 n.4, 642 So. 2d at 1222.

As the State points out, this matter “arises from a request for expert funding

by an indigent defendant who has retained private counsel in a non-capital case.”

Accordingly, the majority’s decision in this matter effectively creates a hybrid

system where clients who have retained counsel are entitled to a monetary

supplement at the taxpayers’ expenses for the costs of litigation. Gideon never

anticipated such a mutation.

Furthermore, the majority’s decision is inconsistent with the separation of

powers doctrine. As the majority correctly notes, under the separation of powers

doctrine, none of the three branches of government may exercise powers belonging

to any of the others. The majority’s decision, however, allows the judiciary to intrude

upon powers constitutionally reserved to each of the other branches–the Legislative

and Executive branches–in clear violation of our system of separated powers.

2 Among the authority vested in the legislature is the exclusive control of public

funds,1 as was acknowledged in Hoag v. State, 04-0857, p. 8 (La. 12/1/04), 889 So.

2d 1019, 1024, (our Constitution “grants sole authority to the legislature to control

the funds of this state and to appropriate funds within its control.”). When the

Legislature expressly appropriates funds for a specific purpose, our case law makes

clear that a court may issue an order directing that those funds be expended without

violating the separation of powers doctrine. Where funds have been appropriated by

the Legislature without being designated for a specific use, however, a court order

directing the recipient of those funds to spend them in a particular manner violates

the separation of powers doctrine.

In this case, the trial court’s order, directing the OSPD to spend its own funds

in a specific manner–to pay for expert fees requested by the defendant–represents

exactly that type of encroachment on the separation of powers that La. R.S. 15:168

E(3) was designed to protect. A review of the statutory framework for capital cases

confirms that the authority to make decisions concerning expert witnesses and the

payment of their fees lies exclusively with the OSPD and not with the courts.

When the Legislature enacted the Louisiana Public Defender Act (“LPD

Act”), it delegated to the OSPD the authority to “adopt all rules necessary to

implement [it].” La. R.S. 15:148 A. In response to this mandate, the Public Defender

Board adopted the Capital Defense Guidelines, 22 LAC Pt XV, § 901, et seq.

Included within those guidelines is the requirement that “[c]ounsel . . . have access

to the assistance of all expert . . . services reasonably necessary to provide high

quality legal representation at every stage of the proceedings.” 22 LAC Pt XV, §

913 B(1). Importantly, the OSPD adopted the rule that “[t]he state public defender

1 La. Const. art. III, §§ 1 & 16(A) provide that legislative power is vested in the legislature and that no money may be drawn from the state treasury except pursuant to a specific appropriation made by law.

3 shall provide funds for the assistance of experts,. . . .” 22 LAC Pt XV, § 913 B(2).2

(Emphasis added). These provisions make clear that the OSPD expressly accepted

responsibility for the payment of experts in capital cases.3 However, there is no

corresponding provision requiring the payment of experts in non-capital cases by the

OSPD, particularly to those, as is the case here, who are privately represented.

Furthermore, even where the OSPD assumed responsibility for providing

funds for experts in capital cases, the OSPD retains discretion over how it spends

those funds which were allocated to it but were not earmarked for any particular

purpose. See footnote 2 (the Louisiana Administrative Code has provisions for the

review of a denial of a request for an expert witness, implicitly recognizing the

OSPD’s authority to determine when it will expend funds for experts); See also, e.g.,

Newman Marchive P’ship, Inc. v. City of Shreveport, 07-1890, p. 10 (La. 4/8/08),

979 So. 2d 1262, 1268-69 (where the City of Shreveport created a fund for the

general payment of claims or judgments against the city without designating any of

the funds for specific claims, mandamus would not lie, as “any judicial order

compelling the City to pay those funds would constitute an unconstitutional seizure

of public funds. . . .[O]nce funds were appropriated . . ., discretion remained with

2 Under the guidelines set forth in the Louisiana Administrative Code for the funding of expert witnesses for indigent defendants who have been sentenced to death, a provision exists for the review of a denial of a request for an expert witness. Pursuant to 22 LAC Pt XV, § 207 A: “Should an application for funding under § 205.A be denied in part or full, the applicant has 30 days from the date of the letter notifying applicant of denial to request in writing that the application be reviewed by the director of the Louisiana Indigent Defense Assistance Board.” Notably, the “[d]ecisions of the director are final.” Id. (The Louisiana Indigent Defense Assistance Board became the Louisiana Public Defender Board in 2007. In a 2024 revision to the laws governing public defense, the Louisiana Public Defender Board was abolished and the OSPD was created). 3 No case has expressly held that the Capital Defense Guidelines have the force of law. However, the legislature tasked the OSPD with “[c]reating mandatory statewide public defender standards and guidelines that require public defender services to be provided in a manner that is uniformly fair and consistent throughout the state.” La. R.S. 15:148 B(1). This language is tracked among the express objectives of the Capital Defense Guidelines: “to create mandatory statewide guidelines and performance standards for the defense of capital cases as required by R.S. 15:148(B)(10) in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence in a manner that is uniformly fair and consistent throughout the state.” 22 LAC Pt XV, § 901 A(1). The guidelines are “principally intended to focus on the structure of capital defense service delivery. . . .” 22 LAC § 901 A(2).

4 the Risk Management Committee to determine if those funds should be disbursed,

how, when, and to whom.”).

The funds at issue are partly allocated to the OSPD by the legislature and

partly derived from other sources (such as fines). None of these funds have been

designated for any particular purpose. As a result, and because the Legislature has

otherwise vested the OSPD with autonomy over its operations, in my view, La. R.S.

15:168 E(3) was validly enacted under the Legislature’s authority, does not

impermissibly encroach upon the jurisdiction of the courts, and comports with the

concept of separation-of-powers principles.

This Court recently reiterated in Watson Mem’l Spiritual Temple of Christ v.

Korban, 24-00055, p. 10 (La. 6/28/24), 387 So. 3d 499, 507, reh’g denied, 24-00055

(La. 8/2/24), 390 So. 3d 277, and cert. denied, 145 S.Ct. 1169 (2025) (Citations

omitted), that “[w]hen litigants seek to invoke the power of the judiciary to compel

another branch of government to perform or act, we must closely and carefully

examine whether the action is within the confines of our constitutional authority.”

These principles apply with equal force to legislation purporting to constrain the

judiciary.

As observed by the majority, the judicial power of our courts is derived “from

[either] an express constitutional grant or from inherent judicial power reasonably

necessary for the exercise of their function as courts.” State v. Umezulike, 03-1404,

p. 4 (La. 2/25/04), 866 So. 2d 794, 797. Here, there is no express constitutional grant

to the courts of the power to order an executive agency to expend funds in a

particular manner. Accordingly, for this judicial power to exist, it must arise from

the court’s “inherent power” which is “reasonably necessary for the exercise of their

function as courts.”

The “inherent judicial powers of the courts are not enumerated in the

Louisiana Constitution.” Konrad v. Jefferson Parish Council, 520 So.2d 393, 397

5 (La. 1988). Our case law explains, however, that the “judiciary’s inherent power is

a necessary concomitant to the judicial power, but pertains to the administration of

the business of the courts.” Chavez v. Metso Minerals Indus., Inc., 23-01029, p. 12,

(La. 10/24/24), 395 So. 3d 771, 890, reh’g denied, 23-01029 (La. 12/12/24), 397 So.

3d 306 (quoting Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 00-

1360, p. 3 (La. 2/21/01), 779 So. 2d 715, 717. (Emphasis added).

In State in Interest of A.C., 643 So. 2d 719, 732 (La. 1994), on reh’g, 93-1125

(La. 10/17/94), 643 So. 2d 743, we explained that “the core function of the judiciary

is the administration of justice between litigants.” Additional functions of the courts

allowed by the “doctrine of inherent powers” were noted in Konrad v. Jefferson

Parish Council, 520 So.2d 393, 397 (La. 1988): “to provide the power to punish for

contempt, to adopt rules of practice, to regulate lawyer admission to practice and

lawyer discipline, and to require the appropriation or expenditure of funds

reasonably necessary for the court’s functioning as a court.” It is also readily

apparent that other clear judicial functions include presiding over trials, rendering

judgments, discretion in litigation, making procedural rulings, and applying and

interpreting the law.

Not all court-related activities are considered functions of the court. In

Umezulike, supra, for example, at issue was whether a statute delegating the

authority to issue a search warrant to the commissioner of a judicial district (a non-

judicial officer) violated the separation of powers doctrine, as that power is

traditionally reserved to elected judges. This Court found that the issuance of a

search warrant is not an inherent judicial power which courts exercise exclusively.

The Court explained: “the issuance of search warrants is not a power necessary to

exercise the jurisdiction of the court, nor does it interfere with the independence of

the judiciary.” Umezulike, 03-1404, p. 9, 866 So. 2d at 801.

6 By contrast, in State in Interest of A.C., supra, the Court addressed a statute

enacted in 1992 (La. R.S. 9:364 D), which required courts to afford greater weight

to a child’s treating therapist on visitation-related issues. Finding that the statute

violated the constitutional system of separation of powers, the Court stated:

[T]he court is vested with whatever inherent powers “necessary for the exercise of its jurisdiction[.]” These powers include the inherent power to assign various weights to evidence it deems credible, no matter what the source. La. C.C.P. art. 191. By its command that the court assign a particular weight to the evidence before it to the exclusion of any other testimony (whether individual or cumulative), the statute is infringing upon this inherent power of the judiciary.

Id., 643 So. 2d at 734. See also, Safety Net for Abused Persons v. Segura, 96-1978,

p. 11 (La. 4/8/97), 692 So. 2d 1038, 1044 (statute which imposed an additional filing

fee to support a program to provide aid to domestic violence victims was

unconstitutional, as it violated the separation of powers doctrine; the fee was not

“sufficiently related to the administration of the criminal justice system to warrant”

its imposition).

When these principles are applied to the instant matter and La. R.S. 15:168

E(3) is examined through a constitutional lens, it is clear that the statute withstands

constitutional scrutiny and conforms with the district court’s lack of authority to

issue an order directing the OSPD, an agency of the executive branch, to expend

funds in any particular manner, including for expert witnesses. The statutory

framework for the OSPD reflects the Legislature’s intent to vest it with full

operational authority and autonomy, encompassing the power to control the use and

expenditure of its funds. Thus, the statute preserves that authority and neither

encroaches upon the judicial power vested by the constitution nor violates the

separation of powers doctrine.

Nor does an order directing the OSPD to expend funds fall within what is

reasonably necessary for the proper exercise of the court’s judicial functions.

7 Although there are no specific parameters for determining what constitutes the

exercise of a court’s judicial functions, it is readily apparent that a court’s directing

how an executive agency spends its own funds, even if that expenditure pertains to

the defense of an indigent defendant, is not a “function” of the court. To hold

otherwise would, in effect, permit the court to interfere with agency budgeting

decisions, and dictate or control the manner in which the defense of a defendant is

conducted, a function reserved to the OSPD (i.e., the court’s exercise of authority

belonging to another branch of the government).

The OSPD’s autonomy is clearly evident in the designation of its powers and

duties, set forth in La. R.S. 15:147. Generally, in subpart A, the legislature granted

the OSPD:

all regulatory authority, control, supervision, and jurisdiction, including auditing and enforcement, and all power incidental or necessary to such regulatory authority, control, supervision, and jurisdiction over all aspects of the delivery of public defender services throughout the courts of the state of Louisiana.

La. R.S.15:147 A. (Emphasis added). Subpart B then sets forth a comprehensive list

of specific powers of the OSPD and outlines certain duties of the OSPD, including:

- adopting “all rules necessary to implement the provisions of this Part as provided in R.S. 15:148 and in accordance with the Administrative Procedure Act. (La. R.S. 15:147 B(2);

- budgeting (La. R.S. 15:147 B(3));

- incurring “such expenses and obligations, within the fiscal limits available to the office, as are necessary to the efficient and thorough regulation and governance of public defender services. . . and establish and maintain an accounting system which complies with the law” (La. R.S. 15:147 B(6));

- allocating funding to the public defenders, contract programs, and other entities as necessary for the implementation the LPD Act (La. R.S. 15:147 B(15)); and

- supervising the activities of staff and applying reasonable controls for the supervision of spending, accounting, and discretionary grants; which supervision includes “reviewing details regarding expert witness funds or other case-specific grants” (La. R.S. 15:147 B(17).

8 Under the LPD Act, a state public defender is appointed by the governor (La.

R.S. 15:152 A) and his duties are set forth in La. R.S. 15:152 B. They include the

duty to:

- “[e]tablish and maintain, in a cost-effective manner, the delivery of legal services to persons entitled to, and financially eligible for, appointed counsel in criminal proceedings at state expense. . . .” (La. R.S. 15:152 B(1));

- prepare the budget of the office (La. R.S. 15:152 B(4));

- “[n]egotiate contracts, as appropriate, for providing legal services to persons financially eligible for appointed counsel at state expense” (La. R.S. 15:152 B(5)); and

- “[e]mploy personnel or contract for services as necessary to carry out the responsibilities of” the LPD Act (La. R.S. 15:152 B(6).

The LPD Act also provides for the “Louisiana Public Defender Fund” and the

“Judicial district indigent defender fund.” The former is established within the state

treasury and is designed to support public defense statewide; it is to be “appropriated,

administered, and used solely and exclusively for purposes of the” LPD Act. La.

R.S. 15:167 A. At least seventy-five percent of the entirety of the fund’s annual

budget is to be “dedicate[d] and disburse[d]” by the OSPD to the offices of the

district public defenders and their indigent defender funds. La. R.S. 15:167 E.

Each judicial district has an indigent defender fund, which is to be

administered by the local district public defender for each district and is “composed

of funds provided for by this Section and such funds as may be appropriated or

otherwise made available to it.” La. R.S. 15:168 A. Subpart B sets forth the manner

by which the funds are to be provided.4 The funds generated in accordance with this

4 La. R.S. 15:168 B (1)(a) provides: Every court of original criminal jurisdiction, . . . shall remit the following special costs to the district indigent defender fund for the following violations, under state statute as well as under parish or municipal ordinance, except a parking violation. Except as provided in Subparagraph (b) of this Paragraph, the sum of forty-five dollars shall be assessed in cases in which a defendant is convicted after a trial, a plea of guilty or nolo contendere, or after forfeiting bond and shall be in addition to all other fines, costs, or forfeitures imposed.

9 statute “shall be retained in the district and shall be used and administered by the

district public defender.” La. R.S. 15:168 C. (Emphasis added). Those funds are to

be “administered and used solely and exclusively for purposes of delivering indigent

defender services in that judicial district.” La. R.S. 15:168 D. Any funds not

expended at the close of each fiscal year “shall remain in the judicial district indigent

defender fund.” Id.

The right to funding for expert witnesses was judicially created in Touchet,

supra, (although the focus of the case was on whether a defendant has a right to an

ex parte hearing on a motion for state funding of expert witnesses), as observed by

the majority. Importantly, again, the Touchet Court did not make any findings with

respect to where those funds are derived.

Later, this Court expounded on the funding for indigent defendants in State v.

Citizen, 04-1841 (La. 4/1/05), 898 So. 2d 325. At issue in Citizens were two statutes

which prevented the use of local parish funds (in Calcasieu Parish) to pay for counsel

appointed to represent indigent defendants.5 Appointed counsel for the defendants

filed a motion to determine the source of funds for competent defense, pointing to

the lack of available funding for indigent defense.6 The trial court found the statutes

to be unconstitutional as they deprived the defendants of their right to a fair trial. It

then ordered the Calcasieu Parish Police Jury to pay for the defense attorney fees

La. R.S. 15:168 B (1)(a). 5 One statute (La. R.S. 15:304) provides that all expenses “incurred. . . by the arrest, confinement, and prosecution of person accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provided by law, jurors and all prosecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed. . . .” The other (La. R.S. 15:571.11) provides that all “fines and forfeitures. . . shall be paid into the treasury of the parish in which the court is situated and deposited in a special ‘Criminal Court Fund’ account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish. . . .” 6In Citizens, an ad valorem tax made up the largest component of the Criminal Court Fund, which maintained the court system and also funded the District Attorney’s office. The local public defender, however, was funded through court fees and funds allocated by the state, and it operated at a deficit. 10 and expert witness fees. This Court reversed, and finding the statutes to be

constitutional, stated:

The statutes do not declare that indigent defense costs will not be paid, they simply place this burden on the state. The fact that the legislature has not adequately funded the programs it has created to meet its constitutional mandate does not make the statutes themselves unconstitutional. Further, while the statutes prohibit the parishes from being required to pay for indigent defense, nothing in the statutes prohibit the parishes from paying these expenses if they so chose. As stated in Craig, the legislature has the constitutional right and authority to declare responsibility for the payment of these costs and it has done so. The mere fact that it has exempted these expenses from the individual parishes does not diminish any of the constitutionally guaranteed rights and freedoms of these defendants or of their attorneys.

Id., 04-1841, pp. 12-13 (La. 4/1/05), 898 So. 2d 325, 335. The Court then turned to

the question of whether the trial court exceeded its constitutional function in ordering

the police jury to set aside funds for indigent defense. The Court first observed that

our Constitution “explicitly places the duty of providing a working system for

securing the representation of indigent defendants squarely on the shoulders of the

legislature.” Id., 04-1841, p. 13, 898 So. 2d at 335; see also, La. Const. Art. I § 13,

supra. The Court next observed that, while the legislature may have been in breach

of its duty to compensate counsel for indigent criminal defendants, “a trial court may

not reach into a local parish’s accounts when constitutionally prohibited by the

legislature.” Id., 04-1841, p. 13, 898 So. 2d at 336. The Court then found the trial

court erred in ordering the police jury to place funds in the court registry to pay the

court-appointed attorneys and other expenses:

The legislature has clearly determined through statutory enactments that the State, not the parishes, will pay for indigent defense pursuant to the constitutional mandate of La. Const. Art. I, § 13.This could not be clearer given the legislative amendments of La. R.S. 15:304 and 15:571.11 in direct response to this Court’s ruling in Craig that those statutes, before amendment, required the parishes, first through the criminal court funds in La. R.S. 15:571.11 and then through the general funds in La. R.S. 15:304, to

11 provide funding for indigent defense where the State Indigent Defender Boards lacked the resources.

Id., 04-1841, p. 14, 898 So. 2d 336.

Notably, the Court indicated that, although the trial court was without

authority to “force” the police jury to pay the costs, nothing prevented it from doing

so. And if there are insufficient funds available, a defendant may file a motion to

halt the prosecution until adequate funding is available and the trial judge “may

thereafter prohibit the State from going forward with the prosecution until he or she

determines that appropriate funding is likely to be available.” Id., 04-1841, p. 17,

898 So. 2d 339.7 Although these cases pre-date the enactment of the LPD Act in

2007, courts have continued to follow Touchet to require hearings to determine a

defendant’s need for expert funding and some have continued to find that courts may

order funds to be provided by the state. See, e.g., State v. Dyas, 53,597 (La. App. 2

Cir. 1/13/21), 309 So. 3d 955, writ denied, 21-00256 (La. 5/4/21), 315 So. 3d 222;

State v. Carley, 10-2768 (La. 1/7/11), 52 So. 3d 81.

The LPD Act has been amended several times, including the 2024 revision of

La. R.S. 15:168 E(3), which, as amended, provides that “[n]o court shall have

jurisdiction to order the payment of any funds administered by the Louisiana Public

Defender Board or district public defender for expert witnesses, or for any other

reason.” Among the express legislative findings made in enacting the LPD was the

goal of “ensuring adequate public funding of the right to counsel is provided and

managed in a cost-effective and fiscally responsible manner” and “ensuring that the

public defender system is free from undue political and judicial interference.” La.

7 In enacting the LPD Act, the legislature acknowledged that the Citizens case “authorized trial judges to halt prosecutions in capital cases, upon motion of defense counsel, until adequate funding is provided to ensure an adequate defense.” La. R.S. 15:142 D. And, among the legislative findings for the LPD Act is an express intention to ensure adequate resources, consistent with the Citizen opinion, which allow prosecutions in such cases to continue to conclusion resulting in verdicts that are fair, correct, swift, and final.” Id.

12 R.S. 15:142 B(1) and (2).8 A court order that infringes on the OSPD’s ability to

control how it spends funds is precisely the type of “undue . . . judicial interference”

that the legislature specifically sought to avoid in enacting the LPD Act.

In establishing a centralized system for public defense, it is clear that the

Legislature intended to vest both the OSPD and the district public defenders with

autonomy in the management of their operations, including making all decisions

bearing on the representation of indigent defendants. While the LPD Act does not

dictate the precise manner by which the OSPD shall operate or how its funds are to

be used, reserving those decisions to the OSPD itself, the autonomy afforded to it

necessarily encompasses fiscal decision-making.

This authority is patently evident in R.S. 15:147 A which gives the OSPD “all

power incidental or necessary to such regulatory authority, control, supervision, and

jurisdiction over all aspects of the delivery of public defender services.” (Emphasis

added). Our case law further recognizes that both the OSPD and the district public

defenders “are given substantial latitude to determine the delivery of public defender

services.” State v. Singleton, 15-1099, p. 10 (La. App. 4 Cir. 5/25/16), 216 So. 3d

985, 992. Included within that latitude is the authority to incur expenses and allocate

funding.9

The OPSD’s authority over expenditures is more explicitly set forth in La.

R.S. 15:167 C, as is the authority of the district public defenders set forth in La. R.S.

15:168 C. The former requires the OSPD to “dedicate and disburse at least seventy-

five percent of the entirety of its annual budget and its funds in the LPD Fund . . .

8 The guidelines set forth in the Administrative Code, too, recognize that defense counsel should ensure that “the performance of the defense function is free from judicial interference.” 22 LAC Pt XV, § 903 C(2); see also, State v. McCoy, 14-1449 (La. 10/19/16), 218 So. 3d 535, rev’d on other grounds, Robert Leroy Mccoy v. Louisiana, 584 U.S. 414 (2018). 9 Again, to confirm the autonomy vested in the OSPD, with respect to the funding of expert witnesses for indigents convicted of capital crimes, the Appeals Procedure in the Administrative Code expressly state that the “[d]ecisions of the director [in review of a denial of an application for funding for an expert] are final.” 22 LAC Pt XV, § 207.

13 each fiscal year to the offices of the district public defenders and their indigent

defender funds . . . in the various judicial districts throughout the state” La. R.S.

15:167.s that the Louisiana Public Defender Fund “shall be administered by the

office [of the state public defender]. . . .” The latter states that the judicial district

public defender funds within the judicial districts “and any other self-generated

revenue and all interest or other income earned from the investment of such funds

and self-generated revenue shall be retained in the district and shall be used and

administered by the district public defender.”

These statutes reflect a legislative intent to vest the agency—not the

judiciary—with primary responsibility for managing the financial and

administrative aspects of indigent defense. To permit the judiciary to override those

determinations by directing how public defense resources are allocated and used

would intrude upon the authority the legislature has expressly vested in the OSPD,

an executive branch agency, and would contravene the separation of powers

established by the constitution. As one court recently noted (in finding that a district

court judge was without authority to order that a specific attorney represent an

indigent defendant), “[t]he administration of the court proceedings is within the

purview of the judge. The administration of representation is within the purview of

the lawyers. See Louisiana Public Defender Act, La. R.S. 15:141 et seq.” State v.

Brown, 21-0230, p. 6 (La. App. 4 Cir. 4/27/21), 317 So. 3d 893, 897. Other decisions

highlight the autonomy of the office of the public defender. See, e.g., State v. Lewis,

09-1978 (La. 9/23/09), 18 So. 3d 67; State v. Brasley, 09-1847 (La. 8/24/09), 17 So.

3d 941, 941.

I would also note that an order directing the OSPD to pay for expert fees is

tantamount to the issuance of a mandamus. Under La. C.C.P. art. 3863, a writ of

mandamus may be directed to a public officer to compel the performance of a

ministerial duty required by law. A ministerial duty is one which there is no element

14 of discretion left to the public officer. Hoag, 04-0857, p. 7, 889 So. 2d at 1024.

Mandamus is to be used “only when there is a clear and specific legal right to be

enforced or a duty that ought to be performed.” Bonvillian v. Dep’t of Ins., 04-0332,

p. 4 (La. App. 1 Cir. 2/16/05), 906 So. 2d 596, 599. When the legislature has

appropriated funds for a specific, designated purpose, the duty to use those funds is

considered ministerial and courts may issue writs of mandamus to enforce the

payment of those sums, even against the state. Where there has been no express

appropriation of funds for a designated purpose, however, courts have consistently

rejected mandamus to force payment.

In Jazz Casino Co., L.L.C. v. Bridges, 16-1663 (La. 5/3/17), 223 So. 3d 488,

for example, the district court issued a mandamus ordering the Secretary of the

Department of Revenue to pay a judgment granting a refund to a taxpayer of several

years of overpaid hotel occupancy taxes. The court of appeal reversed based on a

lack of evidence. In reinstating the district court’s judgment, this Court considered

whether the judiciary could compel the Secretary of the Treasury, a member of the

executive branch, to pay the taxpayer’s refund. The Court first observed that the

legislature was tasked under La. Const. art. VII, § 3(A) with “provid[ing] a complete

and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.”

Id., 16-1663, p. 5, 223 So. 3d at 492. Under the system created by the legislature,

when a refund judgment becomes final, the Secretary is “statutorily required to

‘promptly . . . make the refund.’” Id., p. 9, 223 So. 3d at 494. The Court found this

duty to pay to be ministerial, as the Secretary has no discretion in the return of taxes

determined to have been overpaid.

Similarly, the recent case Mellor v. Par. of Jefferson, 22-01713 (La. 9/1/23),

370 So. 3d 388, involved the collection of fines under a Jefferson Parish “School

Bus Safety Enforcement Program” that was held to be unconstitutional. The district

court ordered the Jefferson Parish School Board and Sheriff’s Office to return and

15 remit into the registry of the court approximately $2.78 million collected under the

program. This Court held that the trial court’s order improperly intruded upon the

authority belonging to the legislative and executive branches, finding “no specific

constitutional or statutory provision permit[ting] the trial court to order the

defendants to remit into its registry the $2,780,232.02” and “no authority. . . to justify

the judiciary’s encroachment into the exclusive dominion of a governmental

authority to appropriate funds to pay judgments under La. Const. art. XII, § 10 and

La. R.S. 13:5109 B (2).” Id, 22-01713, p. 14, 370 So. 3d at 397.

Thus, the Mellor Court found that the order, issued with neither specific

constitutional nor statutory authority, amounted to a constitutional overreach by the

trial court. See also, Hoag, 04-0857, p. 8, 889 So. 2d at 1025, (the court lacked

authority to issue a writ of mandamus compelling the legislature to appropriate the

funding for the statutorily authorized supplemental salaries of coroners, as the act of

appropriating funds is not ministerial, but rather, a “legislative action which is within

its discretionary province and constitutional authority.”); Newman Marchive, supra.

Conversely, mandamus was found to be appropriate in New Orleans Fire

Fighters Pension & Relief Fund v. City of New Orleans, 14-0142 (La. 3/21/14), 131

So. 3d 412, to compel the City of New Orleans to contribute sums to the pension

fund of firefighters that were statutorily mandated. The court found the City’s

obligation to contribute to be a ministerial duty, and thus mandamus was not “an

improper usurpation of a legislative function and does not violate the separation of

powers doctrine.” Id., p. 15, 135 So. 3d at 422.

These cases illustrate when the judiciary may constitutionally compel

payment and, by contrast, why judicial orders compelling indigent-defense

expenditures are improper. The former recognizes orders to pay pursuant to a

ministerial statutory duty; the latter overrides the discretion that has been

legislatively delegated to the OSPD. Unlike those cases where mandamus was

16 appropriate, here, decisions with respect to the funding of indigent defense,

including expert funding, are inherently discretionary and are expressly vested by

statute in the public defender system.

Because the legislature has vested the OSPD with exclusive authority to

determine how and which experts are to be paid, La. R.S. 15:168 E(3)–barring a

court from ordering the payment for expert witnesses–is consistent with the intended

statutory scheme. By ordering the public defender to pay for an expert, a court

impermissibly overrides the legislature’s mandate vesting decision-making with the

public defender. Accordingly, in my view, the Legislature, in promulgating La. R.S.

15:168 E(3), acted within its authority to preserve the autonomy it vested in the

office of the state public defender to manage its operations.

To the extent the LPD Act does not provide a specific remedy to a defendant

whose request for funding for an expert is denied, this is a matter for the Legislature

to address.

Furthermore, a defendant whose request for funding has been denied is not

without resources. First, as noted, Citizens indicated that a defendant may halt the

prosecution until adequate funding is available and a trial court may prohibit the

State from continuing with the prosecution until such time as finding is available.

Second, there is a reasonable safeguard to this issue–denying an indigent

defendant access to a specific expert could later form the basis for an ineffective

assistance of counsel claim. See, e.g., State v. Curley, 16-1708, p. 10 (La. 6/27/18),

250 So. 3d 236, 250 (defense counsel provided ineffective assistance by not

considering or seeking out expert testimony that “could have been relevant to

defendant’s state of mind and the reasonableness of her actions.”). Consequently,

the OSPD is presumed to act with due regard for a defendant’s constitutional right

to effective representation. And a defendant who is convicted after having been

17 denied a requested expert may assert a due process claim (presuming it can be shown

that the expert would have affected the outcome of the case).

For these reasons, I respectfully dissent.

18 SUPREME COURT OF LOUISIANA

On Appeal from the 32nd Judicial District Court, Parish of Terrebonne

GRIFFIN J., additionally concurs and assign reasons.

“The legislature shall provide for a uniform system for securing and

compensating qualified counsel for indigents.” La. Const. art. I § 13. Contrary to the

State’s arguments, this clause was not intended to limit the power of the courts to

protect individual rights. State v. Peart, 621 So. 2d 780, 786 (La. 1993). The original

purpose of this language was to protect those accused of crimes and to place criminal

defendants on balance with the State.1 It would be absurd to read it as limiting the

rights of the accused.

Further, as here, it is not uncommon for courts to issue mandamus orders for

unfunded mandates listed in the Constitution. See Watson Mem’l Spiritual Temple

1This provision was intended as a mandate to the legislature to do something, “where it belongs.” Transcript Records of the Louisiana Constitutional Convention of 1973, volume VII, page 1160, September 7, 1973, 43rd Day of the Proceedings. The framers agreed that it was “not an attempt to suppress or supplant [the rest of article I section 13]...it’s a supplement.” Id. The framers agreed the intent was “to help poor citizens who have been accused of crime.” Id. at 1160; and Id. at 1160- 1162 (general discussion). Delegate Velazquez, who drafted the clause, stated “[t]he purpose of this amendment is to help all those segments of society in the greatest need of help.” Id. at 1160. The amendment passed overwhelmingly 99-11. See Id. at 1162. Discussion as to an earlier draft of this language reveals it was intended to require balance between the state and the defense. Transcript Records of the Louisiana Constitutional Convention of 1973, volume VI, page 928-933, August 24, 1973 36th Day of the Proceedings (full discussion); See Id. at 928 ( Statement by Delegate Velazquez, author of the final version, “This preserves the rights of the accused and it protects an ordinary citizen who might be accused of a crime which he did not commit…We try to balance the prosecution against the defense); and see Id. at p. 931 (Statement by Delegate Stagg noting the provision could require equality with the prosecution). These earlier drafts were rejected because the convention agreed it was better suited for the declaration of rights, as opposed to the judiciary article. This earlier discussion was not cited by the Court in Peart or by the parties, likely because it is labeled in the appendix of the convention records as being about district attorneys. Records, Volume XIV B page 1606. of Christ v. Korban, 24-0055 (La. 6/28/24), 387 So. 3d 499; Jazz Casino Co., L.L.C.

v. Bridges, 16-1663 (La. 5/3/17), 223 So. 3d 488; Lee Hargrave, “Statutory” and

“Hortatory” Provisions of the Louisiana Constitution of 1974, 43 LA. L. REV. 647,

656-57 (1983). Where courts issue rulings as to the contours of constitutional

provisions using mandatory language (just as when a statute sets the contours of

statutory obligations) there is no discretion on the part of the government, and the

courts can issue mandamus orders. Here, that mandatory clause is the due process

clause. La. Const. art. I § 2. SUPREME COURT OF LOUISIANA

On Appeal from the 32nd Judicial District Court, Parish of Terrebonne

Cole, J., dissents for the reasons assigned by McCallum, J.