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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #016

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 15th day of March, 2011, are as follows:

BY WEIMER, J.:

2010-K -0581

STATE OF LOUISIANA v. MICHAEL PETITTO (Parish of Tangipahoa) (Malfeasance In Office) The rulings of the lower courts are reversed, and this case is remanded to the district court for further proceeding consistent with this opinion. REVERSED AND REMANDED. KIMBALL, C.J., concurs and assigns reasons. JOHNSON, J., dissents for reasons assigned by Knoll, J. KNOLL, J., dissents and assigns reasons. GUIDRY, J., concurs in the result and assigns reasons. CLARK, J., dissents for reasons assigned by Knoll, J.

3/15/11

SUPREME COURT OF LOUISIANA
No. 2010-K-0581 STATE OF LOUISIANA VERSUS MICHAEL PETITTO
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA

WEIMER, Justice We granted a writ of certiorari in this case to determine whether the district court erred in granting a motion to quash an indictment charging a parish councilman with two counts of malfeasance in office, violations of LSA-R.S. 14:134. The malfeasance is based on alleged violations of duties imposed upon public officials by two provisions of the Code of Governmental Ethics. Finding the district court erred in ruling that the two-count indictment fails to charge a valid offense, we reverse the ruling of the district court, and of the court of appeal which affirmed that ruling, and remand this case to the district court for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY On December 7, 2007, the grand jury of Tangipahoa Parish returned an indictment charging defendant Michael Petitto with two counts of malfeasance in office, violations of LSA-R.S. 14:134. According to the State's answer to the bill

of particulars, the charges stem from a series of events that commenced on or about March 1, 2006, and continued through November 30, 2006. Defendant, an elected member of the Tangipahoa Parish Council, is alleged to have initiated and voted to approve a parish council resolution supporting an application for tax benefits by the Pine Grove Subdivision, ostensibly for development of property the defendant's brother had already planned to purchase and sell for a profit. Allegedly, in return, the mortgage loan securing defendant's personal residence in Tangipahoa Parish was paid off by the defendant's brother and the mortgage was cancelled. Defendant entered a plea of not guilty to the malfeasance charges. He later filed a motion to quash the indictment urging as grounds that the indictment is duplicitous and fails to charge an offense that is punishable under a valid statute. LSA-C.Cr.P. art. 532(1) and (3). As to the latter contention, the defendant argued that the indictment failed to adequately state or identify a criminal offense as the vehicle through which he intentionally performed one of his duties as a councilman in an unlawful manner. Specifically, the defendant argued that the indictment relied on violations of LSA-R.S. 42:1112(B)(1) and 42:1111(E)(1) to support the malfeasance charges, provisions codified in Title 42 of the Revised Statutes as part of the Code of Governmental Ethics. According to defendant, because the provisions of the Code of Governmental Ethics are not criminal but civil in nature, and punishable by a fine levied by the Louisiana Ethics Board, the State cannot rely on the alleged civil violations to support a criminal prosecution for malfeasance in office; rather, a prosecution for malfeasance in office must be based on a separate and distinct criminal violation such as theft, bribery, kickbacks, extortion, or solicitation to commit a crime.
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In response, the State argued that LSA-R.S. 14:134 does not require a violation of a separate and distinct criminal statute. To the contrary, to establish malfeasance in office, the State contended it need only prove the existence of an affirmative duty imposed by law or statute upon the defendant as a public officer and that the defendant intentionally performed that duty in an unlawful manner or intentionally refused or failed to perform a duty imposed upon him by law. Following a hearing on the motion to quash, the district court ruled in favor of the defendant. In granting the motion to quash, the court explained: "[W]hen it comes to laws that establish ethical standards on public officials I do not believe that those types of laws should be the basis or can be the basis of prosecution for malfeasance in office." Noting that laws addressed to affirmative duties other than ethical ones can, in fact, form the basis of a prosecution for malfeasance in office, the court cautioned that its ruling was intended to apply strictly to the Code of Governmental Ethics.1 The State appealed the adverse ruling, and the court of appeal affirmed, reasoning that the Code of Governmental Ethics is not criminal in nature and that the malfeasance statute was not designed to punish the forms of misconduct alleged therein. State v. Petitto, 09-1855, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 1100, 1103. This court granted a writ of certiorari to address the State's contention that the lower courts erred in concluding that violations of the duties imposed on public officials by the Code of Governmental Ethics may not serve as

Because the district court granted the motion to quash on grounds that the indictment fails to charge an offense which is punishable under a valid statute, it did not address defendant's additional argument for quashing the indictment, i.e., that the indictment is duplicitous because the State is prosecuting defendant for the same alleged conduct in both counts of the indictment. 3

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the basis for a charge of malfeasance in office. State v. Petitto, 10-0581 (La. 11/5/10), 50 So.3d 822. LAW AND ANALYSIS The motion to quash is a procedure by which to raise pre-trial defenses that do not go to the merits of a charge. Under the grounds urged in this case, that the indictment fails to charge an offense which is punishable under a valid statute, the motion to quash can be analogized to an exception of no cause of action in the civil arena. State v. Perez, 464 So.2d 737, 739 (La. 1985). In considering the motion to quash, the district court accepts as true the facts contained in the indictment or bill of information and in the bill of particulars, and determines as a matter of law and from the face of the pleadings, whether a crime has been charged. Id.; State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720, 722 (1971). In this case, the indictment handed down by the Tangipahoa Parish grand jury charges defendant with two counts of malfeasance in office, violations of LSA-R.S. 14:134. That statute provides, in relevant part: Malfeasance in office is committed when any public officer or public employee shall: (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or (2) Intentionally perform any such duty in an unlawful manner; or (3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner. One key phrase in the statute is "any duty lawfully required of him." This phrase makes it clear that before a public officer or employee can be charged with
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malfeasance in office, there must be a statute or provision of law which imposes an affirmative duty upon him. State v. Perez, 464 So.2d at 741, citing State v. Passman, 391 So.2d 1140, 1144 (La. 1980). As this court has explained, this duty must be expressly imposed by law upon the officer (or employee) because the officer (or employee) is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will expose him to criminal charges. State v. Perez, 464 So.2d at 741. In this case, the indictment explicitly sets forth the affirmative duties it alleges are "lawfully required" of the defendant. Count 1 of the indictment charges defendant with malfeasance in office "by wilfully and intentionally performing duties in an unlawful manner by violating LA R.S. 42:1112 B(1)." Count 2 charges defendant with "wilfully and intentionally performing duties in an unlawful manner by violating LA R.S. 42:1111 E(1)." These statutes appear in Title 42, Chapter 15 of the Revised Statutes under the title, Code of Governmental Ethics. Louisiana R.S. 42:1112(B)(1) provides, in relevant part: No public servant ... shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest: (1) Any member of his immediate family. Louisiana R.S. 42:1111(E)(1) provides, in relevant part: No public servant ... shall receive or agree to receive any thing of economic value for assisting a person in a transaction, or in an appearance in connection with a transaction, with the agency of such public servant. In his motion to quash, the defendant argued, and the lower courts concluded, that violations of the aforementioned statutes may not serve as a basis

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for a criminal charge of malfeasance in office under LSA-R.S. 14:134. This conclusion was based on the rationale, explained by the court of appeal, that the Code of Governmental Ethics is not a criminal statute the aim of which is the apprehension and punishment of persons guilty of public wrongdoing, but rather an enactment aimed at preventing public officers and employees from becoming involved in conflicts of interest, which may or may not result in wrongdoing. Since "the Ethics Code is not criminal in nature," the court of appeal reasoned "that the malfeasance statute was not designed to punish the forms of misconduct alleged therein." State v. Petitto, 09-1855 at pp. 5-6, 35 So.3d at pp. 1102-1103. Before this court, the State argued that the focus of the lower courts was misplaced. According to the State, the issue presented is not whether the provisions of the Code of Governmental Ethics are criminal in nature, because the offense being punished under LSA-R.S. 14:134 is not the violation of an ethical duty in and of itself. Rather, the real issue presented is whether the provisions of the Code of Governmental Ethics impose affirmative duties upon public officers and employees, the violation of which (or performance "in an unlawful manner") may form the predicate for a charge of malfeasance in office when committed with the requisite criminally culpable state of mind.2 The State's argument in this regard is well-founded. The issue presented in this case is a narrow one: whether a duty imposed on a public official by the cited provisions of the Code of Governmental Ethics is a "duty lawfully required of him" within the meaning of LSA-R.S. 14:134.

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The State contends there is nothing in the language of LSA-R.S. 14:134 that requires a public official's violation of the "duties lawfully required" to constitute a distinct crime. If such were the case, the State posits, a public official could simply be charged with the underlying crime, and the malfeasance statute would be superfluous. 6

To answer this question of legislative intent, we look first to the language of the statute. State v. Johnson, 03-2993, p.11 (La. 10/19/04), 884 So.2d 568, 575; State v. Gutweiler, 06-2596, p. 9 (La. 4/8/08), 979 So.2d 469,476. "What `a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.'" State v. Williams, 00-1725, p.13 (La. 11/28/01), 800 So.2d 790, 800, quoting, NORMAN J. SINGER, STATUTORY CONSTRUCTION

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