Board of Ethics in the Matter of Jordan Monsour and Walter Monsour , 249 So. 3d 808 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #021
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 1st day of May, 2018, are as follows:
PER CURIAM:
2017-C-1274 BOARD OF ETHICS IN THE MATTER OF JORDAN MONSOUR AND WALTER
MONSOUR (Louisiana Board of Ethics)
In this case, we are called upon to decide whether certain
provisions of the Louisiana Code of Civil Procedure apply to a
motion for summary judgment filed in administrative proceedings
before the Ethics Adjudicatory Board. For the reasons that
follow, we conclude the evidence produced in connection with
motions for summary judgment in these administrative proceedings
must conform to the same requirements applicable to civil
proceedings. For the reasons assigned, the judgment of the court
of appeal is affirmed. The case is remanded to the Ethics
Adjudicatory Board for further proceedings consistent with this
opinion.
AFFIRMED.
05/01/18
SUPREME COURT OF LOUISIANA
No. 2017-C-1274
BOARD OF ETHICS IN THE MATTER OF JORDAN MONSOUR
AND WALTER MONSOUR
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, LOUISIANA BOARD OF ETHICS
PER CURIAM
In this case, we are called upon to decide whether certain provisions of the
Louisiana Code of Civil Procedure apply to a motion for summary judgment filed
in administrative proceedings before the Ethics Adjudicatory Board. For the
reasons that follow, we conclude the evidence produced in connection with
motions for summary judgment in these administrative proceedings must conform
to the same requirements applicable to civil proceedings.
FACTS AND PROCEDURAL HISTORY
The Board of Ethics (“Board”) filed formal charges against respondents,
Walter Monsour and Jordan Monsour. Respondents filed separate motions for
summary judgment with the Ethics Adjudicatory Board (“EAB”), seeking
dismissal of the charges and attaching exhibits in support of their motions for
summary judgment. The Board opposed the motions and attached exhibits in
support of its opposition.
Respondents filed a reply memorandum. In support, they argued the
exhibits attached to the Board’s opposition did not constitute competent evidence
because they were unsworn, unverified, and not self-proving.
The EAB denied respondents’ objections to the Board’s exhibits and
admitted them into evidence. At the end of the hearing, the EAB took the motion
for summary judgment under advisement.
Respondents sought supervisory review from the ruling admitting the
exhibits into evidence. The court of appeal found the EAB erred in admitting the
Board's exhibits, because these exhibits did not meet the requirements of La. Code
Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB’s ruling and
remanded for further proceedings. Two judges dissented in part, and would have
allowed the Board, on remand, to submit competent evidence prior to a ruling on
the motion for summary judgment. Board of Ethics in the Matter of Jordan
Mansour and Walter Mansour, 16-1159 (La. App. 1st Cir. 6/21/17).
Upon application of the Board, we granted certiorari to consider the
correctness of this ruling. Board of Ethics in the Matter of Jordan Mansour and
Walter Mansour, 12-1274 (La. 12/5/17), ___ So.3d ___.
DISCUSSION
Pursuant to La. R.S. 42:1143, all proceedings before the EAB “shall be
subject to and in accordance with the Administrative Procedure Act.” The Board
argues we should apply the provisions of La. R.S. 49:956(1) of the Administrative
Procedures Act, which provides:
In adjudication proceedings:
(1) Agencies may admit and give probative effect to
evidence which possesses probative value commonly
accepted by reasonably prudent men in the conduct of
their affairs. They shall give effect to the rules of
privilege recognized by law. Agencies may exclude
incompetent, irrelevant, immaterial, and unduly
repetitious evidence. Objections to evidentiary offers
may be made and shall be noted in the record. Subject to
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these requirements, when a hearing will be expedited and
the interests of the parties will not be prejudiced
substantially, any part of the evidence may be received in
written form. [emphasis added].
The Board asserts that because this statute is phrased in permissive terms,
the EAB may exclude incompetent evidence but is not required to do so. Thus, it
contends the decision to consider evidence which would otherwise be incompetent
under the Code of Civil Procedure rests in the discretion of the EAB.
We acknowledge hearings in administrative proceedings are held to a
relaxed evidentiary standard. See, e.g., Louisiana Household Goods Carriers v.
Louisiana Public Service Commission, 99-3184 (La. 6/30/00), 762 So. 2d 1081
(holding the Louisiana Public Service Commission had broad discretion to admit
evidence that would not be admissible in a judicial proceeding, provided the
evidence is probative and relevant). Nonetheless, we find the provisions of La.
R.S. 49:956(1) are inapplicable to the instant dispute, as that statute is expressly
limited to “adjudication proceedings.” A motion for summary judgment is distinct
from a formal adjudication hearing. See La. Admin. Code 52:1102.1
The Louisiana Code of Civil Procedure governs civil proceedings in
administrative agency proceedings where agency laws are silent. Ellis v.
Louisiana Board of Ethics, 14-0112 (La. App. 1 Cir. 12/30/14), 168 So. 3d 714,
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La. Admin. Code 52:1102 provides:
A. Motions and exceptions may be made before, during, or after a
public hearing.
B. Motions and exceptions made before or after the public hearing
shall be filed with the appropriate panel of the Ethics Adjudicatory
Board. Contradictory motions and exceptions shall be accompanied
by a memorandum which shall set forth a concise statement of the
grounds upon which the relief sought is based and the legal authority
therefore.
C. A motion for summary judgment may be filed by either the
respondent or the trial attorney(s).
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723; Liberty Mut. Ins. Co. v. Louisiana Ins. Rating Comm'n, 96–0793 (La. App.
1st Cir.2/14/97), 696 So. 2d 1021, 1027, writs denied, 97-2069, 97-2062
(La.12/19/97), 706 So. 2d 451, 452. Because the Administrative Procedure Act
contains no specific requirements for evidence at the summary judgment stage, the
provisions of La. Code Civ. P. arts. 966 and 967 are applicable.
Based on our review, we find the evidence produced by the Board in
opposition to respondents’ motions for summary judgment does not satisfy the
requirements of La. Code Civ. P. arts. 966 and 967. The court of appeal correctly
held this evidence may not be considered by EAB when deciding the motion for
summary judgment.
Accordingly, we affirm the judgment of the court of appeal and remand the
case to the EAB for further proceedings.2
DECREE
For the reasons assigned, the judgment of the court of appeal is affirmed.
The case is remanded to the Ethics Adjudicatory Board for further proceedings
consistent with this opinion.
2
We decline to adopt the position of the dissenting judges in the court of appeal who
suggested it would be appropriate to grant the Board an additional opportunity to submit competent
evidence in opposition to the motion for summary judgment. However, nothing in this opinion
should be construed as preventing the EAB from exercising its discretion to grant the parties an
opportunity to supplement their submissions.
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